IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 230 of 1999 Reserved on : October 26, 2009 Date of Decision : December 29, 2009 Krishan Lal and another ….Appellants Versus: Dharmi Devi (since deceased) Through her LR Smt. Lalita Devi …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellants: Mr. Bhupender Gupta, Sr. Advocate with Ms. Charu Gupta, Advocate For the respondent. Mr. Sunil Mohan Goel, Advocate Sanjay Karol, J. This is the defendants’ regular second appeal filed under Section 100 of the Code of Civil Procedure against the concurrent findings of facts recorded by the Courts below. Judgment and decree dated 25.7.1997 passed by the Senior Sub Judge, L&S at Kullu, H.P. in Civil Suit No. 45/95, stands affirmed by the District Judge, Kullu in terms of its judgment and decree dated 22.3.1999 passed in Civil Appeal No. 75/1997. Plaintiff’s suit for declaration that she is the owner in possession of the suit land stands decreed. Defendants have been restrained from interfering with the same. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 The appellants herein are the original “defendants” and the original respondent herein is the “plaintiff” and are referred to as such in the present appeal. During the pendency of the appeal, the plaintiff expired and her legal heirs have been brought on record. Shri Jyoti Lal, defendants’ father and Shri Roshan Lal, plaintiff’s husband were jointly owning certain properties. However, Shri Roshan Lal was in exclusive possession of the same to the extent of his share as per the following particulars mentioned in the plaint and reproduced as under: “Khasra Nos. 954, 986, 1012, 1015, 1098, 1101 and 1105 measuring 9-17-0 bighas, Khata No.449 Khatoni No. 731 to the extent of half share and land measuring 4-18-10 bighas and another land measuring 1-1-0 bighas comprised under Khasra Nos. 1007 and 1032, khata khatoni No. 587/927 to the extent of ¾ share measuring 0-15-15 bighas total land measuring 5-14-5 bighas situated in Phati Bradha Kothi Harkandi Tehsil and Distt. Kullu, H.P. as recorded and shown in the ownership and possession of one Shri Roshan Lal, who was also co-sharer in the abadi land of Phati Abadi of village Bradha, Kothi Harkandi Tehsil and Distt. Kullu, where 2½ storeyed slate roofed residential house measuring 36’6 “x 22’7” is built and owner of the same to the extent of half share (hereinafter referred to as the suit land).” Plaintiff filed a suit for declaration and injunction to the effect that after the death of Shri Roshan Lal she was owning 3 and possessing the suit land, but however, by exercising fraud, misrepresentation, collusion and connivance, to her exclusion the defendants are claiming complete inheritance of the estate of Shri Roshan Lal. The defendants contested the suit admitting Shri Roshan Lal to be the owner in possession of the suit property to the extent of his share, but denied the plaintiff to be in possession thereof. On merits, they set-up a registered Will executed by Shri Roshan Lal in their favour being his nephews. Based on the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the plaintiff is owner in possession of the suit land being the natural LR of deceased Sh. Roshan Lal, as alleged? …OPP 2. Whether the deceased Sh. Roshan Lal had executed last and final will in favour of the defendants on 1.11.1994? If so, its effect? ..OPD 3. Whether the suit of the plaintiff is not maintainable in the present form? …OPD 4. Whether the suit of the plaintiff is bad for non- joinder of necessary parties? …OPD 5. Relief. Opportunity to lead evidence was afforded to the parties. Appreciating the material on record, the trial Court concluded that the Will propounded by the defendants was shrouded with suspicious circumstances inasmuch as (i) the defendants witness had materially contradicted themselves on 4 the question of the execution of the Will; (ii) the same was surreptitiously executed without the knowledge and in the absence of the plaintiff; (iii) the defendants though related to Shri Roshan Lal were actually residing at a place other than where the plaintiff and her husband were residing and had not rendered services of any kind to the deceased. (iv) the deceased had no reason to disinherit the plaintiff, being his wife who had been living with him and looking after him till his end. It was not expected of him to do so. The first Appellate Court reiterated the view taken by the trial Court. The appeal stands admitted on the following substantial questions of law:- 1. Whether the Lower Appellate Court has wrongly rejected the application under Order 41 Rule 27 and Sections 65 & 66 of the Indian Evidence Act moved by the Defendant-Appellants to prove the application seeking permission to execute and register the Will and the permission granted by the Chief Medical Officer to the deceased? 2. Whether the certificate of Sub Registrar on a registered document has the presumption of truth as is envisaged under Section 60 of the Registration Act, is not such certificate conclusive of the facts recorded therein. In the face of such certificate, was it within the jurisdiction of the courts below to believe that the deceased being indoor patient in the hospital could not execute or 5 get registered the Will in favour of the defendant- Appellants? 3. Whether both the courts below have wrongly held the relationship of husband and wife on account of lawful marriage between the plaintiff and the deceased Shri Roshan Lal, are not such findings contrary to the record as well as against the provisions of Hindu Marriage Act, when according to the own case of the plaintiff, she was married to one Shri Moti Ram and there was no proof of dissolution of the said marriage in accordance with law after the enforcement of the Hindu Marriage Act? 5. Whether both the courts below have wrongly rejected the Will by taking into consideration the alleged suspicious circumstance on the basis of the imaginations, hypothesis of the courts only without there being any proper and legal pleadings made by the plaintiff in this behalf? Mr. Bhupender Gupta, learned Senior Counsel has made the following submissions; (i) The lower Appellate Court erred in rejecting the defendants’ application for leading additional evidence, which proved that the deceased Roshan Lal had actually sought permission from the Chief Medical Officer to leave the hospital for the purposes of executing and registering the Will; (ii) There is complete misreading and mis- appreciation of evidence which has resulted into fallacious findings; (iii) Section 60 of the Registration Act raises a 6 presumption in favour of the defendants with regard to the execution of the Will which stands un-refuted. The registration proved a sound disposing state of mind of the testator which raises a presumption of execution of a valid Will in favour of the defendants. In support of his submissions he has referred to the decision reported in H. Venkatachala Iyengar vs. B. N. Thimmajamma & Ors. AIR 1959 S.C. 443, Gun Parkash & Anr. vs. Bhola Nath AIR 1997 HP 27, Shakuntala Devi vs. Savitri Devi & Ors. AIR 1997 HP 43, Rabindra Nath Mukherjee & Anr. vs. Panchanan Banerjee & Ors. (1995) 4 SCC 459 & Shri Kripa Ram & Ors. vs. Smt. Maina, 2002 (2) Shim.L.C. 213. In rebuttal, Mr. Sunil Mohan Goel, learned counsel for the respondent has supported the judgment for the reasons set out therein. In support of his case, he has referred to the decisions reported in Rani Purnima Debi & Anr. vs. Kumar Khagendra Narayan Deb & Anr. AIR 1962 S.C. 567, Kanthi Ram Bora vs. Dhupali Bora & Ors. AIR 1975 Gauhati 50, Vattakam Purath Parambil Ananda Bhai & Anr. vs. Kanaka Bhai & Ors. AIR 1995 Kerala 208 & Tikkam Lal Batta (deceased) by LRs vs. Ashok Kumar Batta & Ors. AIR 2005 Punjab & Haryana 145. Record perused. Relationship between the defendants and Shri Roshan Lal is not in dispute. The fact that Shri Roshan Lal was occupying the suit property is also not in dispute. That the 7 plaintiff was residing with Shri Roshan Lal during his life time can also not be disputed in view of the defendants own admission. In any event, it has been so held concurrently by the Courts below. That Shri Roshan Lal was ailing and was admitted in the Govt. Hospital, Kullu from 18.10.1994 upto 5.11.1994 can also not be disputed. In any event, it stands admitted by Shri Shanti Lal (DW-1). It is not in dispute that the Will Ext.DA was registered on 1.11.1994 while Shri Roshan Lal was in the hospital. Shri Roshan Lal expired on 6.11.1994 at his native place in his house also cannot be disputed. Substantial question of law No.3, in my considered view is not required to be gone into in view of the specific findings returned by the first Appellate Court in para-9 of the impugned judgment which reads as “In the instant case, at the time of arguments, it is not disputed that Smt. Dharmi Devi is the wife of Shri Roshan Lal and she was residing with Shri Roshan Lal.” In any event, no specific issue with regard to the marital status of the plaintiff was framed by the trial Court. That apart, from a careful scrutiny of the statements of all the witnesses, namely, Smt. Dharmi Devi (PW-1), Shri Nokhu Ram (PW-2), Shri Shanti Lal (DW-1), Shri Chhering Ram (DW-2), Shri Romesh Chand (DW-3), Shri Moti Lal (DW-4), it cannot be said that the plaintiff was not the legally married wife of Shri Roshan Lal. In fact it has also not been suggested by the defendants to the plaintiff while cross-examining her. 8 The defendants did not lead any evidence to prove that marriage between Shri Roshan Lal and Smt Dharmi Devi was not legal or that she had contracted prior marriage first with Shri Keshav Ram and then with Shri Moti Ram and had not taken a legal divorce before contracting marriage with Shri Roshan Lal. In fact DW-1 has admitted that Smt. Dharmi Devi is the wife of Shri Roshan Lal and in relation is his aunt. In the plaint, plaintiff Smt. Dharmi Devi has categorically pleaded that “now since 1st week of February, 1995, defendants started proclaiming that they have become owners of the SUIT PROPERTY on the basis of some registered will and they started interfering in the peaceful ownership and possession of the plaintiff over the SUIT PROPERTY by threatening her to vacate it and further they started threatening to interfere in the horticultural operations on the apple orchard standing on the suit land and further by asking the plaintiff to leave and vacate the “SUIT PROPERTY”. On enquiry, it was discovered that the defendants had procured a fictitious and bogus registered WILL from Roshan Lal deceased during his stay as indoor patient in District Hospital Kullu on 1.11.1994 by exercise of fraud, undue influence and mis-representation in connivance with marginal witnesses and scribe. As a matter of fact Roshan Lal had not made a valid will in favour of the defendants. Defendants had managed to take out aforesaid Roshan Lal from the hospital in a clandestine manner and had managed to procure a registered Will dated 1.11.1994 from him 9 by exercise of fraud, mis-representation and undue influence. This will is shrouded by suspicious circumstances.” In the amended written statement the defendants have taken a plea that “Shri Roshan Lal who was admitted in the hospital on 31.10.1994 had moved written application to the CMO, Kullu, requesting him to allow to visit the Tehsil office for execution of the Will. The application was allowed as Shri Roshan Lal was found to be in a fit condition to give statement. Pursuant thereto Shri Roshan Lal visited the Tehsil office on 1.11.1994 and executed the Will in the presence of the plaintiff. However, since the plaintiff raised objections with regard to the entire estate being bequeathed in favour of the defendants, it was agreed that a provision would be made for her maintenance and consequently the defendants agreed to allow the plaintiff to have the crop of 20 fruit bearing plants or pay a sum of Rs.400/- per month towards her maintenance. The condition was accepted by the plaintiff and the defendants and consequently an agreement dated 1.11.1994 was executed and the original copy thereof was handed over to the plaintiff and photo copy retained by the defendants.” Defendant No.2 Shri Shanti Lal (DW-1) has deposed with reference to the written application moved by Shri Roshan Lal before the Chief Medical Officer, Kullu. Photocopy of the same is mark ‘X’. Neither any steps were taken for summoning the original of the same nor any official from the Govt. Hospital was examined to prove the contents thereof. It was only before 10 the Appellate Authority that the defendants moved an application under Order 41 Rule 27 read with Sections 65 & 66 of the Indian Evidence Act seeking permission to prove the same by leading additional/secondary evidence, which stood rejected in terms of order dated 17.8.1998. In my view the lower Appellate Court has rightly dismissed the same on justifiable reasons. The existence of the document was within the knowledge of the defendants. They took the risk of proceeding with the trial without having the original of the same being placed on record or examining any witness from the hospital to prove the contents thereof. It is the defendants’ case that the original of the alleged agreement dated 1.11.1994 was handed over to the plaintiff which fact stands denied by her. No steps for calling upon the plaintiff to produce the same were ever taken. In fact plaintiff was not even confronted with the same. The Court below rightly held that there was no justifiable reason for allowing the defendants to lead additional/secondary evidence to prove the said document. The defendants could not have been allowed to fill in the lacuna, at a belated stage and that too without any justifiable cause or reason. In fact the application does not even disclose the reason as to why inspite of exercise of due diligence, the document could not be placed on record earlier. Hence, it cannot be said that the Court below wrongly rejected the plaintiff’s application. In any event, Mark ‘X’ does not advance the defendants’ case any further. It is an application allegedly 11 written by Shri Roshan Lal requesting the CMO, Kullu to visit the Tehsil Headquarters to execute a Will on 1.11.1994. At the bottom of the same, a hand written note is appended to the effect that Shri Roshan Lal “is in a fit condition to give statement.” The application in no manner conveys his intention of executing the Will in favour of the defendants. He could have executed the same in favour of the plaintiff also. DW-1 has admitted presence of both the defendants at the time of moving the application. The application is also not written by Shri Roshan Lal. It has been written in Hindi and signed in Urdu. He may not be aware of its contents. The registration of the Will would not dispense with the requirement of proving the Will in accordance with law. Section 60 of the Registration Act, 1908 merely makes the document admissible for the purpose of proving its registration. It is undisputed that the Will stands registered. Registration would not dispense the requirement of proof except where a person admits that he has registered a document, he cannot deny its execution; but he may deny its validity, whether on the ground that he was deceived into executing it, or that the conditions have not been complied with by the person seeking the benefit of it, or any other ground on which a person may claim to be relieved from the operation of an engagement; and, of course, he may deny both execution and registration, or he may admit the former and deny the later. In Bharpur Singh & Ors. vs. Shamsher Singh (2009) 3 SCC 687, the Apex Court has held that “it may be true that the 12 Will was a registered one, but the same by itself would not mean that the statutory requirements of proving the Will need not be complied with. In terms of Section 63 (c), Succession Act, 1925 and Section 68, Evidence Act, 1872, the propounder of a will must prove its execution by examining one or more attesting witnesses. The fact that the propounder took interest in execution of the Will is one of the factors which should be taken into consideration for determination of due execution of the Will. Keeping in view the nature of proof required for proving a Will, Section 90 of the Evidence Act, 1872 has no application. A Will must be proved in terms of the provisions of Section 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872. In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely, Sections 69 and 70 of the Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as Section 68 of the Evidence Act postulates that execution must be proved by at least one of the attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence.” The Apex Court in Rani Purnima Debi (supra) has held that “if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where 13 suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration Will dispel the doubt as to the genuineness of the will.” In Benga Behera & Anr. Vs. Braja Kishore Nanda & Ors. (2007) 9 SCC 728, it has been held that “in view of Sections 52 and 58 of the Registration Act, 1908, the only duty cast on the Registering authority to endorse on the will is to endorse the admission or execution by the person who presented the document for registration. The compliance with that provision leads to the legal presumption that the document was registered and nothing else. If an authority in performance of a statutory duty signs a document, he does not become an attesting witness within the meaning of Section 3 of the Transfer of Property Act and Section 63 of the Succession Act. To ‘attest’ is to bear witness to a fact. The essential conditions of valid attestation are (i) two or more witnesses have seen the executant sign the instrument (ii) each of them has signed the instrument in presence of the executant. ‘Animus attestandi’ is a necessary ingredient for proving the attestation.” 14 In Vattakam Purath Parambil Ananda Bhai (supra), it has been held that “merely because a Will is registered its genuineness cannot be presumed. Registration of a Will does not change the onus of proof from its propounder to the challenger. Whether a Will is registered or not, it is for the propounder to establish by reliable evidence that the Will was signed by the testator, that he at the relevant time was in a sound disposing state of mind and that he fully realized the nature and effect of the disposition and signed it on his own free will. As the burden is heavily upon the propounder to prove the Will he cannot adopt the stand that the registration of the Will itself is a circumstance to dispel any suspicious circumstances. When the genuineness of the Will is challenged the propounder has necessarily to substantiate his case regarding its genuineness even in a case where it is registered. At best registration of a Will though not required by law is only a piece of evidence of the execution. But it cannot have greater sanctity.” Reliance on the decision of this Court in Shri Kripa Ram (supra) is misconceived as the Court was dealing not with the case of a Will but the agreement to sell. Further the officer from the office of the Registrar had deposed that the contents of the document had been readover prior to the registration of the same. In the instant case the facts are not the same. The Apex Court in H. Venkatachala Iyengar (supra) has held that onus to prove the Will is on the propounder. It has to be satisfactorily shown that the Will was (i) signed by the 15 testator, (ii) at which time he was in a sound and disposing state of mind, (iii) he understood the nature and effect of the dispositions and (iv) had put his signatures of his own free will; where in the light of relevant circumstances the dispositions made in the Will may appear to be unnatural, improbable or unfair, or that the Will may otherwise indicate that the said dispositions may not be the result of the testator’s will and mind. The Court would expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The Apex Court in Ramabai Padmakar Patil & Ors. vs. Rukminibai Vishnu Vekhande & Ors. (2003) 8 SCC 537 has held that suspicion means doubt, conjecture or mistrust. However, the fact that natural heirs have been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance. In Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao & Ors. (2006) 13 SCC 433, the Apex Court has held that “if sufficient evidence is brought on record, the onus of the propounder would be discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. Subject to above, 16 proof of a Will does not ordinarily differ from that of proving any other document. However, there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is demanded from the Judge if there exist circumstances of grave suspicion.” In Savitri & Ors. vs. Karthyani Amma & Ors. (2007) 11 SCC 621, the Apex Court has held that when a doubt is created in regard to the condition of mind of the testator despite his signature on the Will or when the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances or where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit, the court must satisfy its conscience before its genuineness is accepted. But what is necessary therefor, is a rational approach. In Kalyan Singh vs. Smt. Chhoti & Ors. AIR 1990 SC 396, the Apex Court has held that “a will is one of the most solemn documents known to law.