HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 248 of 2000 Reserved on: 29.6.2010. Decided on: 15.7.2010 Mohan Lal and another ………Appellants. Versus Rassi Devi ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellants: Mr.B.C. Verma, Advocate. For the respondent: Mr.B.R. Verma, Advocate. V.K. Ahuja, J.: This is a regular second appeal filed by the appellant under Section 100 of the CPC against the judgment and decree, dated 16.2.2000, passed by the learned District Judge, Shimla, whereby the appeal filed by the appellants against the judgment and decree of the court of learned Sub Judge, Theog, dated 27.12.1996, decreeing the suit of the plaintiff, has been dismissed. 2. Briefly stated the facts of the case are that the respondent, hereinafter also referred to as the plaintiff, filed a suit for declaration and injunction against the appellants, hereinafter also referred to as the defendants. The plaintiff alleged that her father Mathu was a resident of village Kadaioug and was owner in possession of the land measuring 5 bighas comprised in Khasra Nos.437/44 and 438/44, as detailed in the plaint. ______________________________ Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - The plaintiff was the only daughter of the deceased Mathu. She was married and was living with her husband. Her father was an illiterate person of 70 years, was a patient of asthma and paralytic and was not having sound disposing mind. The defendants got mutation No.944, dated 23.9.1988, attested in their favour in regard to the property of the deceased Mathu. The plaintiff alleged that she has inherited the property of her father and the mutation attested on the basis of some Will is not binding upon her and as the defendants are threatening to take possession, she filed the suit. 3. The defendants admitted that the plaintiff was the only daughter of Mathu and was married to one Mohan of village Balowa and three children were born out of the wedlock. It was alleged that the plaintiff left the house of her husband Mohan and came back to live with her father where she lived for two years and then she eloped with one Pritam Singh and never came back to live with her father. It was also pleaded that Het Ram, son of the plaintiff, who was of tender age, lived with Mathu till the year 1984. Mathu executed a Will in the year 1984 in favour of Het Ram, who was taken away from the house of Mathu by the plaintiff. There was none to look after and maintain Mathu. Defendants were neighbours of Mathu, helped Mathu in cultivation of his land and they also looked after him. The deceased executed the Will in a sound disposing mind in favour of the defendants on 14.4.1988 and thereafter the mutation was rightly attested in favour of the defendants. - 3 - 4. On the basis of such pleadings of the parties, the following issues were framed by the learned trial Court: 1. Whether the plaintiff is the only legal heir of deceased Mathku, as alleged? OPP 2. Whether the plaintiff is owner in possession over suit land as alleged? OPP 3. Whether Mathku has executed a legal and valid Will in favour of defendants, as alleged? OPD 4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, as alleged? OPD 5. Relief. 5. The parties led their evidence and the learned trial Court vide its impugned judgment decided Issues No.1 to 3 in favour of the plaintiff and as against the defendants and consequently decreed the suit of the plaintiff for declaration and injunction. On appeal, these findings were upheld by the learned District Judge, Shimla, by dismissing the appeal. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. On appraisal of the record of the case, it is clear that the appeal was admitted by this Court on the following substantial questions of law: “1. Whether the findings as recorded by both the courts below are vitiated on account of mis- reading and mis-appreciation of the pleadings of the parties as well as oral and documentary evidence on record? 2. Whether the findings by both the courts below that the respondent being sole daughter could not - 4 - have been dis-inherited by the father; whether on this account Will Ex.D-2 can be held invalid?” 8. A perusal of the judgments passed by both the courts below shows that the fact that the plaintiff Ressi Devi was the only daughter of the deceased Mathu stands proved and has not been disputed by the defendants. The defendants have clearly admitted that they were neighbours of the deceased and are not related to the deceased in any way. To prove their case that the Will in question was validly executed by the deceased, the defendants had examined DW-2 Dila Ram, Petition Writer, who proved that the deceased executed the Will on 14.4.1988 and also executed a cancellation deed in regard to the earlier Will in favour of his grand son Het Ram as also an affidavit Ext.D-4 which has also been proved in this regard. A perusal of Ext.D-3, cancellation deed by the deceased, shows that he had made a reference about the cancellation of the earlier Will and execution of the Will in favour of the defendants. Ext.D-2 is the Will in question and Ext.D-4 is the affidavit of the deceased giving all the reasons for the execution of the Will and cancellation of the earlier Will. 9. DW-4 Gauri Dutt is the attesting witness of Will Ext.D-2 and cancellation deed Ext.D-3. He admitted that the deceased was of the age of 70 years, was a paralytic and was unable to walk and was having a weak eye sight and was also an asthmatic. He admitted that Mathu was a Harijan and the defendant Shyam Lal is a Rajput by - 5 - caste. He also admitted that harijan people do not go inside the house of a Rajput. He was living at a distance of 2 kms. from the house of the deceased. He is not aware if the plaintiff performed the last rites of the deceased and admitted that she used to visit the house of Mathu at times. He admitted that the Nambardar of the village was some other person named Raju. He is neither a Nambardar nor a Pradhan nor related to the deceased nor from his village. 10. DW-6 Rajender Singh is another marginal witness, who has stated that he was the Nambardar for the last 8-10 years. His house is at a distance of 4/5 kms. He admitted that in those days, the Nambardar of the Panchayat was ill. However, he was not aware about the name of the Nambardar. He admitted that the deceased was asthmatic and paralytic for the last many years and was illiterate and was not knowing Hindi. 11. Thus, both these attesting witnesses neither can be said to be known to the deceased nor were related to him nor were from his village. The learned Sub Judge had observed that Mathu Ram died in the house of the plaintiff at village Badrai and she also performed the last rites of Mathu in view of the statement of PW-3 Shyam Lal. A reference was also made to the death certificate Ext.P-1, which shows that the deceased died at Village Badrai and the plaintiff was residing at village Badrai in the house of her uncle Lagnu. It has also come up in evidence that the deceased was taken by Lagnu to his village Badrai prior to his death as there was no other relative of the deceased - 6 - to look after him. The deceased died after a period of two months and 23 days from the execution of the Will Ext.D-2, dated 14.4.1988. The deceased had been taken to village Badrai about two months prior to his death, as has come up in evidence. It was also observed that the defendants pleaded that the plaintiff was not having good terms with Mathu as she eloped 14/15 years prior to the execution of the Will and never turned to the house of Mathu. However, these facts have been proved to be incorrect since it has come up in evidence that she used to visit village Kadaiog as well as Mathu Ram prior to his death and performed his last rites. It has also come up that the husband of the plaintiff died in the year 1979 and she lived there for about two years and then took her son in the year 1984. Thus, it is incorrect that the deceased was not visiting her father for the last 14 years, which comes to 1974, though the evidence showed that she had lived with her father and thereafter her son Het Ram stayed with his grand father before he was taken by the plaintiff sometime in the year 1984 and the Will in question was executed in the year 1988 and thus, it is incorrect that for the last 14-15 years, she had not been visiting the deceased or looking after him. All these suspicious circumstances were considered by the learned First Appellate Court, which had observed that the plea of the defendants that they have been serving the deceased is falsified by the statement of PW-2 Mast Ram that Mathu used to live all alone in the village and he himself cultivated his land till end. The - 7 - defendants being the neighbours may have been rendering services in agricultural work, but there is no evidence on record that they were living in the house of the deceased, were looking after him, particularly, when it has come up in evidence that the deceased was a chamar and the defendants were Rajputs and the Rajputs of the area do not permit people belonging to the Scheduled Caste to enter any portion of their house. Therefore, the possibility that the deceased was being served by the defendants appears to be remote, which has been discussed by the learned First Appellate Court also. DW-6 Rajinder Singh admitted that he was a relative of the father of the appellants per deposition of DW-3 Shiv Ram Chandel. The reappraisal of the evidence has been done by this Court since the appeal was admitted on the substantial questions of law formulated, as referred to above. 10. The submissions made by the learned counsel for the appellants were that the Will is normally executed to disinherit the close relatives and the court is concerned about the genuineness of the Will. Even the Will can be executed for the benefit of others including animals. In support of his submission, the learned counsel for the appellants had placed reliance upon the decision in Krishna Kumar Birla versus RAjendra Singh Lodha & Ors., 2009(1) Civil Court Cases 257(S.C.), wherein such observations were made. Reliance was also placed upon the decision in Bhagwat Sheshrao Choudhary versus Chakradhar Tukaram Thakare, 2007(2) Civil Court Cases 375 (Bombay), - 8 - wherein it was observed that merely because a near relation or blood relative was excluded by itself is not a suspicious circumstance. The decision in Savithri & Ors. Versus Karthyayani Amma & Ors., 2007(4) Civil Court Cases 801 (S.C.), was also relied upon wherein it was observed that depriving a natural heir by itself is not a suspicious circumstance. 11. On the other hand, the learned counsel for the respondent had relied upon the decision in Bharpur Singh & Ors. Versus Shamsher Singh, 2009(1) Civil Court Cases 804 (S.C.), wherein it was observed that if the Will is surrounded by suspicious circumstances, it would not be treated as a last testamentary disposition of the testator. It was also observed that when the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances, the suspicious circumstances have to be removed. 12. It is clear from a perusal of the above evidence that both the courts below had considered the suspicious circumstances and had come to the conclusion that these have not been removed by the propounder of the Will. The mere fact that a close heir has been disinherited is not a ground to be considered except when there are no compelling circumstances to show that the relations in between the parties were strained and the executant of the Will intended to disinherit the close heir. The question of validity of the Will has to be considered by the Court and thereafter no moral ethics or questions of morality are to - 9 - be considered by the Court as to whether it was a moral disposition or not and the desire of the executant has to be given effect. In the facts and circumstances of the present case, the suspicious circumstances have been discussed by both the courts below. Both the attesting witnesses were neither from the village of the deceased nor there is evidence to show that they were persons in whom the deceased reposed confidence and took them as attesting witnesses for the execution of the Will. The question of caste has also been considered by the learned Appellate Court and there is no evidence led by examination of any witness from the Village to prove that the deceased was being served by the defendants. There are no valid reasons to hold that the deceased ever intended to disinherit his only daughter and intended to execute the Will in favour of the defendants. The evidence has been discussed by both the courts below and on appraisal of the evidence, it is clear that the findings of fact recorded by both the courts below that the Will in question was not genuine do not call for an interference by this Court on any reasons and as such there is no merit in the appeal filed by the appellants, which is liable to be dismissed. 13. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellants, which stands dismissed. However, the parties are left to bear their own costs. July 15, 2010. (V.K. Ahuja), (TILAK) Judge.