IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 576/2000 Reserved on: 11.5.2011 Decided on:2.6.2011 ___________________________________________________ Hira Lal. …Appellant. Versus Maya Ram and others. …Respondents. ____________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Bhupender Gupta, Senior Advocate with Mr. Janesh Gupta, Advocate. For the Respondents: Mr. Anand Sharma, Advocate for LRs No.1 (a) and 1 (b) Mr. S.S. Mittal, Senior Advocate with Mr. Surinder Prakash, Advocate for LR No.1 (c). _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 1.11.2000 rendered by the learned District Judge, Kullu in Civil Appeal No.70/99. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that Smt. Muni Devi, 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 predecessor-in-interest of the respondents-plaintiffs (hereinafter referred to as ‘plaintiff’ for convenience sake) filed a suit for declaration with consequential relief of injunction against the defendant (hereinafter referred to as the ‘defendant’ for convenience sake). Case of the plaintiff is that one Sh. Shiv Chand son of Sh. Bhimu, husband of the plaintiff, was owner in possession of the suit land measuring 14-13-00 bighas kitas 7, Khata Khatauni No. 4/5 situated in Mauza Le- Baring, Kothi Jalhma, Sub Tehsil Udaipur, District Lauhal-Spiti. Shiv Chand died in October, 1992 in mysterious circumstances at Sainj and his dead body was cremated by the police. He died intestate. Plaintiff, being his widow was the sole heir and after the death of Shiv Chand, she inherited the entire estate left by Shiv Chand. However, defendant on the basis of “will” Ex.DW-4/A dated 25.2.1978, got mutation No. 10 dated 23.12.1992 attested in his favour. According to the plaintiff, the will dated 25.2.1978 is shrouded by suspicious circumstances and the same cannot be termed as genuine and last “will” of Shiv Chand. 3. The suit was contested by the defendant. According to the defendant, Shiv Chand was his grand- father and he died issueless. He rendered all kinds of 3 services to Shiv Chand and out of love and affection; he executed the “will” in his favour on 25.2.1978 whereby he bequeathed his entire property in his favour. The mutation was rightly attested in his favour. No replication was filed by the plaintiff to the written statement filed by the defendant. The issues were framed by the trial court on 27.6.1997. The trial court decreed the suit vide judgment and decree dated 6.4.1999. He passed the decree for declaration against the defendant. The “will” dated 25.2.1978 Ex.DW-4/A was declared illegal, null and void having no binding effect on the rights of the plaintiff. The plaintiff was held entitled, being the sole legal representative, legally entitled to inherit the suit property left by him. The mutation No. 10 dated 23.12.1992 was also declared illegal, null and void. Defendant feeling aggrieved by the judgment and decree of the trial court, preferred an appeal before the District Judge, Kullu. He dismissed the same on 1.11.2000. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. Whether both the courts below have ignored the Tribal customs applicable to Shri Shiv Chand, executant of the will who belongs to the Tribal community Lauhal and Spiti, wherein there was 4 no prohibition for the testator to have executed the will in favour of the defendant-appellant in lieu of service? 2. Whether under the Tribal customs applicable to the parties, the defendant-appellant being nearest reversioner ought to have been natural successor, which provides that the widow takes a limited interest during her life time? Have both courts below taken an essentially wrong approach by holding that the will Exhibit DW-4/A was shrouded by suspicious circumstances by not making a mention of the wife of the Testator, i.e. plaintiff? Are not such findings against the well settled principles of law enunciated by Hon’ble Supreme Court of India as well as this Hon’ble Court? 3. Whether both the courts below have wrongly set aside the will Exhibit DW-4/A on such grounds which were neither pleaded nor proved by the plaintiff merely when the plaintiff-respondent failed to appear as her own witness. Were not both the courts below required to raise adverse inference against the plaintiff for not appearing as her own witness as envisaged under the Evidence Act, when the Special Attorney who was a distinct relation was not competent to testify on the material aspect of the matter involved between the parties. 4. Whether both the courts below have wrongly rejected the will on the ground that there were discrepancies in the statements of the scribe and the marginal witnesses examined in the court to prove the will by ignoring the fact that such witnesses were made to testify about the due execution and attestation of the will after the lapse of about more than 14 years? 5 5. Whether both the courts below have misread the statements of the witnesses who prove the will including the statement of the defendant and also applied wrong principles of law in rejecting the appeal, are not findings of both the courts below illegal, erroneous and perverse when they reject the will on highly untenable grounds? 4. During the pendency of this Regular Second Appeal one Sh. Prem Chand son of Sh. Jog Chand, claiming to be the legal representative of deceased Muni Devi on the basis of will Annexure A-1, moved an application bearing CMP No. 30/2004, under order 1 rule 10 of the Code of Civil Procedure for impleading him as respondent. The application was allowed by this Court on 2.3.2005 and Sh. Prem Chand was impleaded as party-respondent 1(c). 4. Mr. Bhupender Gupta, Senior Advocate on the basis of the substantial questions of law formulated submitted that the findings recorded by both the courts below are contrary to record. According to him, the “will” dated 25.2.1978 Ex.DW-4/A was genuine and has been executed in accordance with law. 5. Mr. Anand Sharma and Mr. S.S. Mittal, Sr. Advocate have supported the judgments and decrees passed by both the courts below. 6 6. I have heard the learned counsel for the parties and have perused the records carefully. 7. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 8. PW-1 Prem Chand, special power of attorney of the plaintiff Muni Devi, deposed that the plaintiff remained with deceased Shiv Chand during his life time. Their relations were cordial. Shiv Chand died near Sainj Nallah in suspicious circumstances and the police recovered his body. His body was also cremated by the police. Shiv Chand was maintained by the plaintiff. 9. PW-2 Ranbir Singh has supported the version of PW-1. According to him, relations of the plaintiff and deceased Shiv Chand remained cordial and the deceased was looked after by the plaintiff during his life time. Shiv Chand died at Kullu Seraj in suspicious circumstances. Hence, last rights were performed at Kullu. 10. Defendant has appeared as DW-1. He has not disclosed in his examination-in-chief, the name of second marginal witness of the ‘will’ Ex.DW-4/A. In his 7 cross-examination, he has admitted that the plaintiff and deceased Shiv Chand remained at Kullu as husband and wife and their relations were cordial. He came to know about the death of Shiv Chand only after 5-6 days. He did not come to Dhalpur. He admitted that he did not go to Hardwar to perform last rights of Shiv Chand. According to his testimony, testator deceased Shiv Chand had disclosed to him at the time of execution of “will” that he would maintain his wife and this fact was recorded in the “will” Ex.DW-4/A. However, he has admitted that this fact is not found recorded in the “will” Ex.DW-4/A. According to him, plaintiff was present at her house when the “will” was allegedly executed by deceased Shiv Chand. 11. DW-2 Bhag Singh has admitted that the relations between Shiv Chand and plaintiff were cordial and they stayed together. He though stated that deceased expired at Kullu, but could not state as to how he expired. He did not know who performed the last rites of deceased Shiv Chand. He admitted that plaintiff after the death of Shiv Chand left for the house of her parents and now she was residing with her nephew Sh. Prem Chand. 8 12. The “will” was scribed by DW-5 Ram Singh. According to him, he has scribed the “will” at the instance of Shiv Chand. The contents of the same were read over and explained to Shiv Chand, who after admitting the same to be correct put his thumb impression on the ‘will’ in the presence of marginal witnesses and in his presence. Thereafter, both the marginal witnesses Bhag Ram and Amar Singh signed the ‘will’ in the presence of testator Shiv Chand. He has admitted in his cross-examination that generally in ‘will’ description of legal heirs of the testator is given and that at the time of execution of the ‘will’, testator told him that he was not having any legal heir. He did not mention about his wife at the time of execution of the ‘will’ and that is why he did not mention about his wife in ‘will’ Ex. DW-4/A. According to him, he enquired from the testator Shiv Chand about his wife, but did not disclose whether he was having his living wife. It is in these circumstances, he could not record this fact in the ‘will’. 13. It has been amply proved on record that the plaintiff had been living with Shiv Chand till his death. DW-4 Bhag Ram is one of the marginal witnesses of the ‘will’ Ex.DW-4/A. He is cousin of defendant Hira Lal. 9 He has deposed that the ‘will’ was executed by Shiv Chand in favour of the defendant in his presence and in the presence of witness Amar Singh and at the time of execution of the “will”, physical and mental position of testator was good. However, in his cross-examination, he has admitted that the plaintiff remained with Shiv Chand till he breathed his last and in the year 1978, Shiv Chand had no need of any person for his help. He further deposed that after execution of the will, plaintiff and testator Shiv Chand came to Kullu and they remained at Kullu as husband and wife. He further admitted that at the time of execution of the ‘will’, the testator did not disclose about the plaintiff to Scribe, therefore, they did not enquire from him about this fact. 14. DW-6 Amar Singh belongs to a village, which is 30-40 kilometers from the house of testator. He could not narrate the exact age of the testator when the ‘will’ was executed. He saw the deceased on the date when the “will” was executed and before that he had not seen him. He also stated that the testator Shiv Chand did not disclose about his issues and wife at the time of execution of the ‘will’. 15. What emerges from the statements discussed hereinabove is that plaintiff Muni Devi was 10 wife of Shiv Chand. The relations between Shiv Chand and plaintiff were cordial. Shiv Chand was maintained and looked after by the plaintiff during his life time. Muni Devi is the sole legal heir of deceased Shiv Chand. There is no mention of the wife in the “will” Ex.DW-4/A. DW-1 Hira Lal did not disclose the name of another marginal witness, i.e. DW-6 Amar Singh. Body of Shiv Chand was recovered in suspicious circumstances. He has not performed the last rites of Shiv Chand. DW-5 Ram Singh, Scribe of the will, has admitted that normally in the “will”, description of the legal heirs of the testator is given at the time of execution of the “will”. However, in the instant case, the testator told him that he was not having any legal heir. It is in these circumstances, he could not mention about his wife at the time of execution of ‘will’ Ex.DW-4/A. He is closely related to defendant. He has admitted that Shiv Chand was living with his wife and their relations were normal. He has also admitted that Shiv Chand did not require any help since he was hale and hearty. He has further admitted that plaintiff and Shiv Chand came to Kullu and remained at Kullu as husband and wife. 16. The Court is of the considered view that the will dated 25.2.1978 is shrouded with suspicious 11 circumstances. The suspicious circumstances have not been removed by the defendant. There is no reason forthcoming why the legal heir of deceased Shiv Chand, i.e. plaintiff has been disinherited from the property. In the case in hand, one of the marginal witnesses is closely related to defendant and other witness is completely stranger, who hails from a village, which is 30-40 kilometers away from the house of the testator. There is no revenue entry in favour of the defendant except the stray entry Ex.P-2. The defendant has also not led any evidence to prove his relationship with deceased Shiv Chand. The name of his grand-father was Dandu Ram, who was brother of Shiv Chand. It was for the defendant to establish the “will” in question and also to remove all the suspicious circumstances surrounding the ‘will’ Ex.DW-4/A. In the ‘will’ there is no reason assigned why plaintiff has been excluded from the property. Mere registration of the ‘will’ Ex. DW-4/A will not create presumption of its genuineness. It is one of the factors, which is to be seen by the Court. 17. Accordingly, in view of the observations made hereinabove, there is no substantial question of law involved in the Regular Second Appeal and the same 12 is dismissed. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 2.6. 2011 *awasthi*