IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.86/2002 Reserved on: 3.11.2011 Decided on:11.11. 2011 _____________________________________________ Jiunu and another. …Appellants. Versus Kashmir Singh. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. Lovneesh Kanwar, Advocate. For the Respondent: Mr. Bhupender Gupta, Sr. Advocate with Ms. Charu Gupta, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 5.7.2001 rendered by the learned Additional District Judge, Mandi in Civil Appeal No.107 of 1996. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondent- plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) filed a suit for declaration and 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 injunction. According to the plaintiff, Dagu Ram was owner in possession of the land as per details given in paras 1 (a) to 1 (e) of the plaint. He executed “will” in favour of plaintiff and appellants-defendants (hereinafter referred to as ‘defendants’ for convenience sake) on 4.9.1986; vide Ex. PA whereby he has bequeathed his entire share in the land in equal shares. Mutation to this effect was attested on 21.4.1989 in favour of the parties. Defendants got manipulated a forged and fictitious “will” Ex. DC dated 1.8.1988 in connivance with the Patwaris, namely, Neel Mani and Lachhman Singh. According to the “will” dated 1.8.1988, plaintiff was given 1/8th share and 7/8th share was given to the defendants from the landed property of Dagu. According to the plaintiff, Dagu never executed will Ex. DC dated 1.8.1988. 3. Suit was contested by the defendants. According to the defendants, “will” was executed by Dagu on 1.8.1988 whereby they were given 7/8th share and plaintiff was given 1/8th share. The mutation was attested on 19.8.1991. The “will” was duly registered and according to the defendants, earlier “will” dated 4.9.1986 was not valid. Issues were framed by the learned Sub Judge, 1st Class, Court No.1, Mandi on 3.5.1993. He decreed the suit on 8.10.1996. Defendants 3 preferred an appeal before the learned Additional District Judge, Mandi. He dismissed the same on 5.7.2001. Hence, the present Regular Second Appeal. It was admitted on the following substantial question of law: 1. “Whether when the subsequent will was registered during the life time of the executant was not presumption to the certificate given by the Sub Registrar, conclusive under section 60 of the Registration Act to show that the executant got registered the will voluntarily? 2. Whether both the courts below have misread and mis-appreciated the evidence resulting in the impugned judgment and decree?” 4. Mr. Lovneesh Kanwar, on the basis of substantial questions of law framed, has strenuously argued that both the courts below have misread and mis- appreciated the oral as well as documentary evidence led by the parties. According to him, ‘will’ dated 1.8.1988 has been validly executed and the ‘will’ dated 4.9.1986 was cancelled by late Sh. Dagu Ram. 5. Mr. Bhupender Gupta, 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. Dagu Ram has executed a “will” dated 4.9.1986 in favour of the parties Ex. PA. Mutation was 4 attested on 21.4.1989. Plaintiff, Kashmir Singh, has appeared as PW-1. Dagu Ram had no son. He executed a “will” in favour of the plaintiff and defendants. The “will” was executed on 4.9.1986. Dagu Ram has never executed any “will” after the said “will”, 8. PW-2 Rup Lal has testified that on 4.9.1986, Dagu Ram executed a “will” in favour of the plaintiff and defendants. He bequeathed his entire property in equal shares to the plaintiff and defendants. It was scribed by the Document Writer. The Document Writer read over and explained the contents of the “will” to Dagu Ram. Dagu Ram after admitting the same to be correct put his thumb impression. He alongwith Dagu Ram, Goverdhan, Dutt Ram, Pradhan were present before the Document Writer. They signed it as witnesses. Thereafter, they went to the office of Tehsildar. Tehsildar made inquiries from Dagu Ram, who after admitting the “will” to be correct put his thumb impression on the “will”. They also signed it as witnesses. 9. PW-3 Dutt Ram has testified that Dagu Ram executed “will” on 4.9.1986. It was registered. He was called by Dagu Ram at the time of execution of the will. The Document Writer has scribed the will. The contents of the “will” were read over and explained to Dagu Ram. 5 Dagu Ram after admitting the same to be correct put his thumb impression. They signed as witnesses. They visited the office of Tehsildar who also read over and explained the contents of the “will” to Dagu Ram, who after admitting the same to be correct put his thumb impression. They also signed it as witnesses. 10. Thus, it is evident that the “will” Ex. PA dated 4.9.1986 was validly executed by Dagu Ram whereby he has bequeathed his entire property in equal shares between the parties and the mutation was executed on 21.4.1989. 11. Now, the Court will advert to second “will” executed by Dagu Ram Ex. DC. The mutation was attested on 19.8.1991 on the basis of “will” Ex. DC dated 1.8.1988. 12. DW-3 Lachhman Dass was marginal witness of “will” Ex.DC. He deposed that he knew Dagu Ram. He used to visit his house. He has executed ‘will’ in which he has given 7/8th share to the defendants and 1/8th share to the plaintiff from his property. The “will” was got scribed from Document Writer in his presence. At that time DW-4 Neel Mani was also present. The contents of the document were read over and explained to Dagu Ram, who after admitting it to be correct put his 6 thumb impression on it. He alongwith DW-4 Neel Mani put his signatures on the ‘will’. He proved Ex. DC, which was registered on 29.8.1988. The “will” could not be registered on 1.8.1988 since it was 5.00 O’ clock and the Tehsildar was not available. Dagu Ram was having sound state of mind. He has executed “will” without any pressure. Tehsildar also read over and explained the contents of will on 29.8.1988 to Dagu Ram. He after admitting it to be correct put his thumb impression in his presence and in the presence of Neel Mani. 13. DW-4 Neel Mani is another marginal witness. According to him, the “will” was executed by Dagu Ram on 1.8.1988. He and Lachhman Singh were marginal witnesses. It was scribed by Bhagirath, Document Writer. The “will” was executed in his presence and in the presence of Lachhman Singh. Dagu Ram was having good health and he was of sound state of mind. The Document Writer read over and explained the “will” after scribing to Dagu Ram. He after admitting it to be correct put his thumb impression on it. Thereafter, he and Lachhman Singh put their signatures on the “will” as witnesses. The “will” was registered on 29.8.1988. Tehsildar read over and explained the contents of the “will” to Dagu Ram. He after admitting it to be correct 7 put his thumb impression. Thereafter, both of them signed it. Dagu Ram voluntarily executed the will without any pressure. The mother of the plaintiff was having 6-7 bighas of land. In case the “will” Ex.DC was not executed by Dagu Ram then his wife would have inherited the property of Dagu Ram. 14. DW-1 Jiwan Lal has deposed that Dagu Ram was his grand-father and plaintiff is his brother. They are from different mothers, but their father is same. His grand-father executed a “will” in their favour in which 1/8th share of his property was given to the plaintiff and 7/8th share was given to defendants. The mother of the plaintiff was having 6-7 bighas of land. He has also placed on record copy of jamabandi for the year 1990-91 Ex.DA and copy of mutation Ex.DB. 15. There is no reason assigned in the “will” Ex.DC dated 1.8.1988 why the earlier “will” dated 4.9.1986 Ex.PA was cancelled. The reasons assigned by DW-3 Lachhman Singh and DW-4 Neel Mani are not contained in the “will” Ex.DC. DW-3 Lachhman Singh has deposed that the will was got scribed by Dagu Ram from the Document Writer in his presence and in presence of DW-4 Neel Mani. The contents of documents were read over to Dagu Ram, who after admitting it to be 8 correct put his signatures on the “will” Ex.DC. However, DW-4 Neel Mani has testified that when the “will” was scribed from the Document Writer, at that time he and Dagu Ram were present before the Document Writer and the Document Writer informed them that one more witness is required to attest the “will”. Thus, they called Lachhman Singh from the office of Deputy Commissioner. Lachhman Singh came to Document Writer at 11.45 A.M. Thereafter, according to DW-4, he alongwith Dagu Ram visited Document Writer at 11.00 A.M. Thus, there is variance in the statements of DW-3 Lachhman Singh and DW-4 Neel Mani. It is abundantly clear that DW-3 Lachhman Singh was not present when the “will” was scribed. Moreover, Lachhman Singh has testified that Dagu Ram came from his house alongwith Jiunu, Gurdev and Neel Mani and no person from the village of Dagu Ram had accompanied Dagu Ram. However, DW-4 Neel Mani testified that Dagu Ram came alone from his house and defendant had not accompanied Dagu Ram. DW-3 Lachhman Singh has further stated that they visited the Tehsil Office on 1.8.1988 at about 4.45 P.M. He alongwith Jiunu, Gurdev and Neel Mani went to Tehsil Office. The discussion was made with the Tehsildar. He was again 9 called by the Tehsildar on 29.8.1988. However, DW-4 Neel Mani has deposed that on 1.8.1988 they did not visit Tehsil Office because Dagu Ram after scribing the “will” went to his house as he wanted to consult his family members. Lachhman Singh has testified that when he visited the office of Tehsildar with Neel Mani and Dagu Ram on 29.8.1988, none of the witnesses were present there and Neel Mani and defendant identified Dagu Ram before the Tehsildar. However, Neel Mani has testified that Sh. G.R. Palsara, Advocate also visited alongwith them to Tehsil Office. Dagu Ram was in fact identified by Sh. G.R. Palsara and not by the witnesses. The defendant has taken active part in the execution of the “will” Ex.DC dated 1.8.1988. DW-4 Neel Mani is the son-in-law of Dagu Ram and real maternal uncle of defendants. No independent witness was associated at the time of execution of the will. It is, thus, evident from the observations and discussions made hereinabove that the “will” Ex. DC dated 1.8.1988 is shrouded with suspicious circumstances, which have not been removed by the defendants. There are material contradictions in the statements of DW-3 Lachhman Singh and DW-4 Neel Mani the manner in which the will has been executed and registered before the Tehsildar. The “will” dated 10 1.8.1988 was not executed voluntarily as argued by Mr. Loveneesh Kanwar. Both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties. 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. (Justice Rajiv Sharma), Judge. 11.11. 2011 *awasthi*