IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA 526 of 2000. Judgment reserved on 11.5.2010. Decided on May 14, 2010. Atma Ram (deceased) represented through his LRs Mast Ram & others ..Appellants/Defendants. Versus Sehdev Singh and others ..Respondents/Plaintiffs. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant Mr. Karan Singh, Advocate. For the respondents Mr. Sanjeev Kuthiala, Advocate. Surjit Singh, Judge This is defendants ‘ appeal against the judgment and decree, dated 1.8.2000, passed by the first appellate Court, that is, learned District Judge, Sirmaur District at Nahan, whereby, accepting the appeal, first appellate Court has set aside the judgment and decree of trial Court, dismissing the suit of respondents-plaintiffs and a decree of declaration, with consequential relief of permanent prohibitory injunction, has been passed against appellants-defendants and in favour of the respondents- plaintiffs. 2. Before deciding the main appeal, two CMPs, i.e. CMP(M) Nos. 75 of 2009 and 76 of 2009, which are moved Whether reporters of the local papers may be allowed to see the judgment? - 2 - for substitution of two of the deceased appellants, namely Atma Ram and Inder Singh, by their legal representatives, need to be decided. These two appellants died long before the aforesaid CMPs were moved for representation of their estate. Respondents object to the allowing of these applications, as according to them, no cause, much-less sufficient cause, has been shown for delay in making the applications. 3. There are several appellants/ defendants. Their total number is 12. Only two of them, namely Atma Ram and Inder Singh, are stated to have died. Some of the appellants are minors. Interest of the minors cannot be allowed to be adversely affected, on account of delay on the part of legal representatives of appellants, Atma Ram and Inder Singh, to seek their substitution, as appellants, in place of their deceased predecessors –in- interest. Moreover, when there are several appellants, who are in a position to watch the interest of deceased appellants, estate of deceased appellants cannot be said to be unrepresented. 4. In view of the above said position, as also the reasons stated in the two petitions, delay in seeking the setting aside of abatement, is condoned, abatement is set aside and the legal representatives of the above named two deceased appellants are ordered to be substituted as - 3 - appellants. Necessary correction be carried out in the memo of parties. Amended memo shall also be filed within a week. 5. Respondents-plaintiffs filed a suit for declaration that they were owners in possession of half share in the land, measuring 368 bighas, situated in village Dungi Kandyon(hereinafter referred to as ‘suit land’), as the same had been bequeathed in their favour by late Smt. Palka Devi, vide Will, dated 17.4.1998 and that mutation of inheritance, attested on 13.7.1998, with respect to the estate of said Palka Devi, in favour of appellants-defendants, was illegal, void and of no consequence. By way of further relief, prayer was made for issuance of permanent prohibitory injunction, restraining the appellants-defendants from interfering in possession of the respondents-plaintiffs. It was stated that Palka Devi was owner of the suit land and that on 17.4.1998, she executed a Will in respect of the suit land in favour of respondents-plaintiffs, in lieu of the services rendered by them to said Palka Devi. It was stated that Palka Devi died on 25.6.1998 and soon after her death, appellants-defendants, without informing respondents- plaintiffs, got mutation of estate of deceased Palka Devi attested in their favour, according to the rules of - 4 - inheritance and on the strength of that order of mutation, they were threatening to interfere in their possession. 6. Suit was contested by appellants-defendants. It was denied that Palka Devi had executed any Will in favour of respondents-plaintiffs or that the latter had rendered any services to the former. Various preliminary objections were also raised. Trial Court framed a number of issues and ultimately came to the conclusion that the Will was shrouded by suspicious circumstances, which rendered it invalid. Appeal was filed by the respondents- plaintiffs in the Court of District Judge who held that Will had been validly executed by deceased Palka Devi in favour of respondents-plaintiffs. Consequently, appeal was accepted and judgment and decree of the trial Court were set aside and the suit was decreed. 7. This regular second appeal is directed against the judgment and decree of learned District Judge. It was admitted on the following substantial questions of law: 1. Whether in the facts and circumstances of the case active participation at the time of alleged execution of Will by one of the beneficiaries of the Will, age and health of testatrix, exclusion of natural heirs without any reason, registration of the Will at Nahan instead of Dadahu near the residence of the testatrix, marginal witnesses as well as scribe not proved to be the persons of the confidence of the testatrix are suspicious - 5 - circumstances regarding the execution of the Will Ex.PW-2/A dated 17.4.1998? 2. Whether Will Ex.PW-2/A has been executed in accordance with Section 63 of the Indian Succession Act, 1925, and even if it is held to be so executed whether in the facts and circumstances of the case Will satisfies the judicial conscious of the Court? 8. Counsel for the appellants and respondents were heard at length. Record has been gone through. 9. As already noticed, learned trial Court held that Will was shrouded by suspicious circumstances and, therefore, it was not a valid Will. Suspicious circumstances pointed out by trial Court were taken note of by learned District Judge in appeal and the same are detailed in para 15 of the judgment of learned District Judge. The same read as follows: (i) Prominent part taken by Sehdev Singh, plaintiff No. 1 in the execution of the will. (ii) No witness to the will is from the village of the testatrix. (iii) Dadahu was near to village of the executant, but she was brought to Nahan for execution of the will. (iv) Smt. Palka Devi was neither physically nor mentally sound during those days as she was suffering from ailment for the last many years. (v) Smt. Palka Devi was taken by the plaintiffs in the month of April, 1998 from the house of the - 6 - defendants on the pretext that she their Mausi and was to be taken for JAGARAN to be performed at their village Patarag. (vi) Will Ext. PW-2/A does not reflect the mind of the testatrix, rather it is an expression of the mind of the beneficiary in collusion with the scribe Shri Davinder Singh, Advocate. (vii) The prescription slip and other medical papers were prepared in the month of April, 1998 itself just to show that the plaintiffs had got deceased Palka Devi treated in the hospital. 10. Learned District Judge observed that plaintiffs had been rendering services, not only to Palka Devi, testatrix, but also to her husband and that the fact is not only testified by PW-1, Sehdev, one of the plaintiffs and PW-4, Mast Ram, but is corroborated by the fact that PW-1 Sehdev, was named as joint account holder, in the joint saving bank account of testatrix Palka Devi and her husband Bahadur Singh. Observation by the first appellate Court that Sehdev Singh was a joint account holder in the saving bank account, cannot be upheld, for the simple reason that only on the basis of pass book Ex.PE, in which name of Sehdev is written in a different ink, by scoring out the name of Bahadur Singh, it cannot be said that he was in fact joint account holder. Some evidence was required to be summoned from the concerned bank to prove the fact. Also, pass book, on the face of it, suggests that - 7 - Sehdev was not a joint account holder with Bahadur Singh, husband of testatrix, but his name was added in place of Bahadur Singh’s name, probably after his death. 11. Will Ex.PW-2/A recites that legatees Sehdev and Shamsher Singh, sons of a God sister of testatrix, and one Hirda Ram, Brahmin, had rendered services to the testatrix and, so, she was making the Will in their favour. There is absolutely no evidence about any services having been rendered by Hirda Ram or Shamsher Singh, brother of Sehdev, plaintiff. That means, recital in the Will about Shamsher Singh and Hirda Ram, having rendered services, is not proved by any independent evidence. If that is so, there was no occasion for the testatrix to have bequeathed her estate in favour of said Shamsher Singh and Hirda Ram. 12. As regards the alleged services rendered by Sehdev, plaintiff, suffice it to say that but for self serving statement of Sehdev, who appeared as PW-1 and testimony of PW-4 Mast Ram, who stated that Sehdev was his nephew (Bhanja), there is no other evidence. PW-4 Mast Ram, in cross examination, belied Sehdev’s claim that he had been rendering services to Palka Devi and her husband for several years. Witness stated that the testatrix lived with Sehdev only for 3-4 months. It is admitted case of both the parties that in the month of - 8 - April, 1998, testatrix had been taken away by plaintiff Sehdev to his village, situated far away from Palka Devi’s own village and she remained there till her death, which took place on 25.6.1998. It was during this period that Will, dated 17.4.1998, Ex.PW-2/A, is alleged to have been executed. 13. Sehdev, PW-1, testified that he had got testatrix treated at Paonta Sahib, where an operation for ovarian cancer was performed and that thereafter he got her treated at Rajgarh and Shimla. He tendered in evidence Ex.PB, treatment chart, prepared during operation at Paonta Sahib, OPD slip Ex.PC, regarding treatment at Rajgarh and discharge slip Ex.PD, regarding treatment at Indira Gandhi Medical College, Shimla from 12.5.1998 to 3.6.1998. Learned first appellate Court has held that production of the aforesaid papers by the plaintiffs indicate that it was they who had been rendering services to the testatrix. Learned District Judge has completely ignored the rest of evidence available on record. 14. Dr. Inderjit Singh, at whose clinic the testatrix was operated upon for ovarian cancer, appeared as a witness of the defendants. He is DW-1. He very categorically stated that the testatrix was brought to his Nursing Home and got admitted by appellant-defendant - 9 - Mast Ram, who not only defrayed his charges to the tune of Rs.6,000/-, but also donated a bottle of blood. Similarly, defendants examined a clerk from District Hospital, Nahan, who appeared with record and testified that testatrix remained admitted in the hospital from 6.12.1997 to 15.12.1997. Witness is DW-2 Sirmaur Singh. Mast Ram himself appeared as DW-7 and stated that he got testatrix treated at Nahan Hospital from 15.12.1997 to 22.12.1997 and at the clinic of Dr. Inderjit Singh, from 22.12.1997 to 2.1.1998 and paid Rs.6,000/-, as clinic charges, besides donating blood. 15. Plaintiff Sehdev denied that testatrix was got treated at Nahan hospital. This denial is shown to be untrue by the testimony of DW-2 Sirmaur Singh. If denial of Sehdev and testimony of DW-2 Sirmaur Singh and DW- 7 Mast Ram are considered together, there cannot be any escape from the conclusion that defendant-appellant Mast Ram got the testatrix treated at Nahan hospital before shifting her to the clinic at Paonta Sahib. This evidence belies the claim of the plaintiffs-respondents that Palka Devi, testatrix was rendered services by them and that in lieu of those services, she executed Will in their favour. 16. Papers regarding treatment of the testatrix at Paonta Sahib were no doubt produced by the plaintiff, but it has come in evidence that the deceased was sick even - 10 - after operation and that when she went with the plaintiff in April, 1998, she took all the papers with her, probably for being shown to doctors, in case of further treatment. 17. Plaintiffs ’ plea of rendering services to the husband of the testatrix is also falsified by DW-2 Sirmaur Singh. The witness stated that Bahadur Singh, husband of the testatrix died in the hospital at Nahan after having remained admitted for a number of days. However, Sehdev denies that he died in the hospital or was admitted in the hospital. Defendant Mast Ram stated that he got Bahadur admitted to the hospital, when he breathed his last, after 8-10 days. That means Bahadur was looked after by the defendants, who are his collaterals. 18. Sehdev, plaintiff No. 1, is proved on record to have taken prominent part in the execution of the Will. He, per his own statement, took the testatrix from his village to a place called Dadahu. According to him, witness Krishnan started with him and testatrix from his village, while witness Karam Singh met on the way at a place called Papra. Karam Singh is brother-in-law (Jeeja) of Sehdev, per his own statement. Statement of Sehdev that Krishan started with him and the testatrix from his village is not correct. Krishan himself, while appearing as PW-3, stated that he was asked by Palka Devi to accompany her for execution of the will on the previous - 11 - day and that he met her and Sehdev on the way at village Papra, when they were going to Dadahu. He stated that Karam Singh, other witness, also met them at Papra, when he boarded the bus at some distance, after they had boarded that bus and were travelling by it. 19. Contradiction in the testimony of Sehdev, PW-1 and Krishan, PW-3, as to the place where did Krishan join the testatrix, suggests that Krishan witness had also been arranged by Sehdev. Thus, it is more than clear that Sehdev played a prominent role in the execution of the Will. 20. Not only this, it has come in evidence that from Dadahu, the testatrix was brought to Nahan, the same day and it was there that the Will was got scribed. Explanation given by Sehdev and PW-3 Krishan, for not getting the Will scribed at Dadahu and coming to Nahan, is that Sub Registrar was not available at Dadahu on that day and so they went to Nahan, district head-quarter of Sirmaur District. Admittedly, testatrix was not keeping good health those days. If that was so, she should not have been made to undertake arduous journey by bus from Dadahu to Nahan and the Will could have been got scribed and executed on some other day. The fact that she was taken to Nahan, the same very day, is suggestive of the anxiety - 12 - of the plaintiffs to get the Will executed, as early as possible. 21. Testatrix was an illiterate lady. She did not know how to even sign a paper. She used to thumb impress the papers. Therefore, she cannot be presumed to have advised the plaintiffs or the attesting witnesses to take her from Dadahu to Nahan, on account of non availability of Sub Registrar at Dadahu, so that the Will was registered. She was not supposed to be even knowing, whether the Wills can be registered. Further, the Will records that testatrix had no class I heir. She, being an illiterate, was not supposed to be knowing, what class I heirs, or heirs included in Schedule I to Hindu Succession Act, meant. 22. Witnesses of the Will are not only not from the village of testatrix, that is to say, her husband’s village Bagh, but they are not even from the village where the testatrix had been taken by the plaintiffs in April, 1998 and where she ultimately died in June, 1998. Plaintiff Sehdev is resident of village Mehendo Patarag, while Krishan Singh is resident of village Paniyali and witness Karam Singh is resident of village Parara. 23. According to plaintiff Sehdev, PW-1, scribe Devinder Singh, PW-2 and attesting witness Krishan Singh, PW-3, Will was attested by only two witnesses, namely - 13 - Karam Singh and Krishan Singh, but Will Ex.PW-2/A purports to be attested by one more witness, namely A.Z.Ansari of Nahan town. This is an additional suspicious circumstance. 24. It has been admitted by a witness of the plaintiffs themselves, namely PW-4 Mast Ram, that Palka Devi had been ill and was having severe abdominal pain for 5/7 years before her death. Evidence on record, as discussed hereinabove, suggests that initially, she remained under treatment at District Hospital, Nahan, for about a week and from there, she was straightway taken to Paonta Sahib, where operation for ovarian cancer at the clinic of DW-1, Dr. Inderjit Singh, was performed. Even after that operation, she did not fully recover. She went with the plaintiffs to their village in April, 1998. She was got treated as an outdoor patient at Rajgarh. Then she was brought to Shimla, where she remained admitted up to 3.6.1998. She was taken to the hospital at Rajgarh on 24.4.1998, or say after about a week, after execution of the Will. All this shows that testatrix was not in good state of health, around the time when Will purports to have been executed. She was dependent upon others for her treatment and probably, also for managing her person. In these circumstances, whosoever was looking after her, was in a position to influence her mind. Therefore, it - 14 - cannot be said that Palka Devi, testatrix was in a position to make disposition of her estate, of her own volition. 25. Defendants are the second cousins of the husband of the testatrix. The suit property was inherited by the testatrix from her husband. Plaintiffs are strangers. They are the sons of a God sister of the testatrix, per their own case. Testatrix could not have preferred the plaintiffs to the defendants in the matter of succession of her estate. 26. In view of the above discussion, it is held that execution of the Will is shrouded by suspicious circumstances, which render its genuineness, highly doubtful and the evidence led by the plaintiffs with regard to the Will does not satisfy the judicial conscious. Both substantial questions of law, on which the appeal was admitted, are answered accordingly. 27. As a result of the above discussion and answers to the substantial questions of law, appeal is accepted. Judgment and decree of the first appellate Court, reversing the judgment and decree of trial Court are set aside, and the judgment and decree of trial Court are restored. May 14, 2010 (PC) (Surjit Singh), J.