IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.77 of 2003 Date of Decision: December 1, 2011 Baldev Singh and others ..Petitioners Versus Om Praakash and others .. Respondents Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes For the appellants: M/s J.L. Bhardwaj and R.S. Gautam, Advocates. For the Respondents: Mr. N.S. Chandel, Advocate. __________________________________________ Surjit Singh, Judge (oral) Present Regular Second Appeal was admitted on the following substantial questions of law on 25.4.2003: “Whether both the Courts below have misread and mis-appreciated the oral and documentary evidence to come to the conclusion that the Will dated 16.4.1986 executed in favour of defendants by late Shri Atma Ram is a valid Will and is not shrouded with suspicious circumstances.” 2. Factual matrix that needs to be noticed for deciding the appeal is like this. Present appellants, Whet her report ers of t he l ocal papers may be al l owed t o see t h e j udgment ? É2É hereinafter referred to as plaintiffs, filed a suit for declaration that they were owners in possession of 19 Bighas 5 Biswas land, described in the plaint, having inherited the same from their father Atma Ram, as per law of succession. They pleaded that they had come to know that respondents-defendants, who are nephews of their father Atma Ram, got the suit property mutated in their favour, on the basis of a Will purporting to have been executed by Atma Ram on 16.4.1986. It was alleged that Atma Ram was sick on the date of alleged execution of Will and because of that illness he was not in a fit state of mind to understand the nature of disposition made through the Will. Also, it was alleged that the Will was forged. 3. Respondents-defendants contested the suit and alleged that the appellants-plaintiffs never cared for the deceased and because of that he disinherited them and executed the Will in their favour. 4. Issues, based on the pleadings of the parties were framed by the trial Court and the suit was dismissed, with the findings that the deceased had not been looked after by the plaintiffs, who were his son, wife and daughter and that the deceased used to live with the respondents and was maintained and taken care of by them and that was why he executed the Will, in respect of the suit property, in their favour. É3É 5. Appellants filed appeal against the judgment and decree of the trial Court, dismissing their suit, before the learned District Judge, who dismissed the same vide judgment and decree dated 2.7.2002. 6. I have heard learned counsel for the parties and gone through the record. Entire evidence has been read in the Court by the learned counsel for the appellants- plaintiffs. 7. Respondents examined one of the attesting witnesses of Will, which is Ext. D-1, as also the scribe. They also examined the Panchayat Secretary, who proved copies of entries in the Parivar Register, maintained by the Panchayat, pertaining to the families of deceased testator and appellant Ram Jani his wife. 8. DW-3 Shyama Nand, the scribe of Will Ext. D-1, stated that parties were known to him personally and that on 16.4.1986 deceased Atma Ram accompanied by his two nephews Om Parkash and Surat Ram, both of whom are respondents in this appeal, came to him and got scribed Will Ext. D-1. He stated that Will was written by him as per wishes and instructions of the deceased and after scribing it he read out and explained its contents to Atma Ram, who after admitting the same to be correct signed it. He also testified that thereafter Will was signed by two marginal witnesses, namely DW-2 Dharam Singh and Rikhi Ram. É4É 9. DW-2 Dharam Singh stated that he went to Ghumarwin to attest the Will, on the asking of testator Atma Ram. He stated that he was approached by Atma Ram to attest the Will, in his capacity as Pardhan of Gram Panchayat. He further stated that Will was got scribed by Atma Ram from DW-3 Shyama Nand and that after it was written, DW-3 Shyama Nand read out and explained its contents to the testator, who admitted the same to be correct and then put his signature to execute the Will and thereafter he and the other witness, Rikhi Ram, attested it. 10. DW-5 Chunni Lal, Secretary Gram Panchayat, proved copies of entries in Parivar Register, Ext. DW5/A and Ext. DW5/B. As per entry in Ext. DW5/A, Atma Ram was the head of the family, comprising of himself, his brother Krishnu and his brother’s sons Om Parkash, Surat Ram, Kishori Lal and Rakesh, all respondents herein. Names of appellants-plaintiffs do not figure in this document. On the contrary, entries in Ext. DW5/B show that Ram Jani, one of the appellants-plaintiffs, who is widow of Atma Ram, was the head of another family, comprising of herself and other two plaintiffs, namely Baldev her son and Lata Rani her daughter. 11. Aforesaid two documents corroborate the recital in the Will that appellants-plaintiffs had been living separate from the testator and had not been rendering any services to him. It is not only the aforesaid documents Ext. DW5/A É5É and Ext. DW5/B, which show that the plaintiffs-appellants had not been looking after or rendering services to the testator, but also there is admission of Baldev Singh, one of the plaintiffs who appeared as PW-1, that he did not participate in the cremation of the deceased and cremation was performed by the respondents. 12. Testimony of the scribe and one of the attesting witnesses examined by the respondents-defendants prove the due execution of the Will. Will was submitted for registration to the Sub Registrar of Documents on the very day of its execution and was registered on the same day by him. 13. Learned counsel, representing the appellants, submits that the testator was admitted in the hospital at the time of execution of the Will and this circumstance itself is enough to create a very strong doubt about the genuineness of the Will. To support the submission, learned counsel relies upon the statement of DW-1 Om Prakash, who stated that deceased was admitted to the hospital on 14.4.1986 and remained admitted beyond 16.4.1986. It is true that DW-1 Om Parkash had testified that the deceased was admitted on 14.4.1986, but at the same time he had stated that he did not accompany the deceased to hospital. There is specific statement by plaintiff Baldev Singh himself that deceased was admitted in the hospital at Bilaspur on 16.4.1986 and that he had seen the record, when he went É6É to the hospital on 18.4.1986, after being informed telegraphically that his father Atma Ram was sick and admitted in that hospital. 14. Next submission made by the learned counsel for the appellants is that two of the respondents- defendants, who are beneficiaries under the Will, had participated in the execution of the Will. DW-3 Shyama Nand, Scribe of the Will, admitted that respondents- defendants Om Prakash and Surat Ram had accompanied the testator, when he came to him to get the Will scribed. Learned counsel, relying upon a judgment of the Hon’ble Supreme Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and others, AIR 1959 SC 443, emphasizes that participation of beneficiaries in the preparation of Will renders the Will suspicious. 15. Mere one circumstance of participation of some of the beneficiaries in the preparation/execution of the Will by itself is not enough to disbelieve the Will in the present case. The reason is that the testator was the head of the family of the beneficiaries (as is made out from the entries in Parivar Registrar, copy Ext. DW5/A) and was dependent upon the beneficiaries in his old age for all kind of services. Date of scription, execution and registration of Will is 16.4.1986. It is made out from the evidence that it was on 16.4.1986 that the testator was taken to the hospital at Bilaspur and admitted there. It is quite likely that while É7É being taken to the hospital at Bilaspur from his village, the testator, who was not having good relations with his son, daughter and wife, the plaintiffs herein, felt that he might not survive and, therefore, he should be making suitable arrangement for the disposition of his estate. 16. Another submission made by the learned counsel for the appellants is that respondent-defendant Om Parkash while appearing as DW-1 denied his presence at the time of execution of the Will, but DW-3 Shyama Nand, the Scribe, categorically stated that he was present, when the Will was scribed. This contradiction in no way disproves the execution of Will by the deceased testator, especially when its execution is proved to the hilt, by the Scribe and one of the attesting witnesses, as referred to hereinabove. Also, the Rule falsus in uno falsus in omnibus is not recognized by Indian jurisprudence. 17. As a result of above discussed position, substantial question of law is answered against the appellants and appeal is dismissed. December 1, 2011 (ss) (Surjit Singh), J.