IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R. S. A. No. 317 of 1995 along with R.S.A. No. 319 of 1995. Reserved on 10.11.2008. Decided on: 26.11.2008. __________________________________________________ RSA No. 317 of 1995. Krishna Kumari … Appellant. Versus Dharmi Devi and others. … Respondents. ___________________________________________________________ RSA No. 319 of 1995. Dharmi Devi and others. … Appellants. Versus Karam Singh and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. RSA No. 317 of 1995: For the appellant : Mr. Ramakant Sharma, Advocate. For Respondents : Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate for respondents No. 1 (a) to 1 (i). Mr. Bhupinder Gupta, Sr. Advocate with Ms. Charu Gupta, Advocate for respondent No.2. RSA No. 319 of 1995: For the appellants. : Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate. For the respondents : Mr. Bhupinder Gupta, Sr. Advocate with Ms. Charu Gupta, Advocate for Respondent No.1. Mr. Ramakant Sharma, Advocate for Respondent No. 2. ___________________________________________________________ 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 Rajiv Sharma, Judge. These appeals are directed against the judgment and decree passed by the learned District Judge, Hamirpur on 4.8.1995 in Civil Appeal No. 64 of 1989. It will be more appropriate to take into consideration the facts of Regular Second Appeal No. 319 of 1995 since its outcome will have bearing on Regular Second Appeal No. 317 of 1995 as well. The predecessor-in-interest of respondents/plaintiffs Smt. Krishna Devi and Smt. Krishna Kumari, hereinafter referred to as the plaintiffs for convenience sake, filed a civil suit in the Court of Sub Judge Ist Class (1), Hamirpur for declaration against the appellant, hereinafter referred to as the defendant to the effect that they being the widows of deceased Shri Tulsi Ram were owners in possession of land measuring 37 Kanals 6 Marlas comprised in Khata No. 6, Khatauni No. 6 and that the Will Ext. D-1 propounded by the defendant is fictitious, invalid and inoperative qua the rights of the plaintiffs over the suit land. In the alternative, the plaintiffs had sought decree for possession of the suit land and also maintenance at the rate of Rs. 300/- per month. The suit was contested by the defendant. It is averred that he used to reside with Shri Tulsi Ram during his life time and he used to look after him as well as his property. The trial Court decreed the suit on 12.4.1989. The defendant preferred an appeal before the learned District Judge, Hamirpur. The learned District Judge, Hamirpur dismissed the appeal. However, the judgment and decree passed by the learned Sub Judge was 3 modified to the extent that only Smt. Krishna Devi was held entitled to the estate of Shri Tulsi Ram deceased. The defendant filed regular second appeal in this Court bearing No. 319 of 1995 assailing the judgment and decree dated 4.8.1995 passed by the learned District Judge, Hamirpur. Shri Jaishi Ram died during the pendency of the hearing of this appeal and Smt. Dharami Devi and others were substituted as appellants vide order dated 23.7.2001. Smt. Krishna Kumari also feeling aggrieved and dis- satisfied by the judgment and decree passed by the learned District Judge, Hamirpur, whereby she was not held entitled to the property of Shri Tulsi Ram being the second wife, filed regular second appeal No. 317 of 1995 assailing the findings recorded against her by the learned District Judge, Hamirpur. Regular Second Appeal No. 319 of 1995 was admitted on the following substantial questions of law: 1. Whether the Will Ext. D1 executed by Tulsi Ram has been misread and misconstrued and wrongly rejected when the alleged suspicious circumstances had been explained? 2. That when it was established on record that the deceased Tulsi Ram was being looked after and maintained by the appellant and had suffered paralysis during which period his wife had not looked after and maintained him, it was natural for Tulsi Ram to have willed the property in favour of the appellant and others to the exclusion of his wife. 3. Whether the due execution of the Will was proved from the independent witnesses and the registration thereof 4 raised a presumption about its valid execution and registration? 4. Whether the Court below has drawn wrong inference from the facts proved on record and the findings of the court below are not sustainable? 5. Whether in view of the dismissal of the earlier suits filed by Krishna Devi and payments of the money of Tulsi Ram from the post offices made to the appellant barred the pleas raised by the plaintiff in the present suit and the same ought to have been dismissed? Regular Second Appeal No. 317 of 1995 was admitted on the following substantial questions of law: 1. Whether the learned lower appellate court has got the jurisdiction to give findings on the point which has neither been urged nor any issue has been framed to that effect? 2. Whether the learned lower appellate court is right in giving findings that the appellant is not entitled to succeed to the estate of late Shri Tulsi Ram being co- widow especially when there is no challenge to the status of the appellant by the other co-widow? 3. Whether the learned lower appellate court is right in suo motu giving findings on the status of the appellant especially when there is neither any locus standi of the respondent No.1 defendant nor he could have claimed any right qua that purpose? 4. Whether the learned lower appellate court is right in holding that the appellant is not entitled to succeed since second marriage could not have been there and the same is void, especially when the second marriage has 5 not been admittedly challenged within a stipulated period? Regular Second Appeal No. 319 of 1995 was directed to be listed along with Regular Second Appeal No. 317 of 1995 vide order dated 8.3.1996. RSA No. 319 of 1995: Since substantial questions of law in this regular second appeal are inter-connected with each other, they have been taken up together for adjudication. Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate has strenuously argued that the judgments and decrees passed by both the Courts below are not sustainable in the eyes of law. He then contended that the Will Ext. D-1 dated 25.3.1983 executed by Shri Tulsi Ram in favour of Shri Jaishi Ram is valid. Mr. Bhupinder Gupta, Ld. Senior Advocate has supported the judgment and decree passed on 4.8.1995 by the learned District Judge, Hamirpur. However, Mr. Ramakant Sharma, Advocate has supported the judgments and decrees passed by both learned Courts below to the extent whereby the Will has been declared null and void but had submitted that the findings recorded by the learned District Judge, Hamirpur whereby the appellant Smt. Krishna Kumari in regular second appeal No. 317 of 1995 had been divested from the property is liable to be interfered with. I have heard the parties and have perused the record carefully. 6 The Will Ext. D-1 is dated 25.3.1983. It was executed by Shri Tulsi Ram. Shri Tulsi Ram died on 12.5.1984. DW-1 Shri Jaishi Ram has testified that the Will Ext. D-1 was executed in his presence along with witnesses Shri Rattan Chand and Shri Bahadur Singh. It was a registered Will. He has deposed that he had looked after Shri Tulsi Ram and he was in possession of the suit land. According to him, Smt. Krishna Devi is residing with his brother at village Tarakwari. Smt. Krishna Kumari is stated to have married Shri Prem Singh of Hamirpur. In his cross-examination, he has admitted that Smt. Krishna Devi and Smt. Krishna Kumari are married wives of Shri Tulsi Ram. He has played a very active role at the time of execution of the Will dated 25.3.1983. He had called witnesses Shri Rattan Chand and Shri Bahadur Singh to attest the Will. Shri Rattan Chand the attesting witness has died. The second attesting witness Shri Bahadur Singh was examined as DW-3. According to him, the Will was got drafted by Shri Tulsi Ram. The contents of the same were read over and explained to him before he put his signatures in his presence and in the presence of Shri Rattan Chand. According to him, Tehsildar also read over and explained the contents of the Will Ext. D-1 before he put his signatures on endorsement Ext. D1/A. DW-4 Shri Biroo Ram has deposed that Shri Jaishi Ram used to look after Shri Tulsi Ram. DW-5 Shri Rattan Chand has also stated that Shri Tulsi Ram was looked after by Shri Jaishi Ram. However, he has stated in his cross-examination that Shri Tulsi Ram used to get his land cultivated from Shri Bhagat Ram. DW-6 Shri Jaswant Singh has stated that Shri Jaishi Ram had looked after and maintained Shri Tulsi Ram and performed his last rites. He has stated that the 7 wives of Shri Tulsi Ram used to visit him during his life time, who was afflicted by paralysis. He also admitted that these wives were in possession of the portion of the suit land. DW-7 Shri Amin Chand has deposed that the signatures of his brother Shri Rattan Chand are on the Will Ext. D-1. However, he has stated in his cross-examination that one wife of Shri Tulsi Ram was living in his house in village Chaleta. He has deposed that Shri Tulsi Ram was afflicted by paralysis for two three years before his death. DW-10 Shri Ram Dass has stated that Shri Tulsi Ram was looked after and maintained by Shri Jaishi Ram and that his last rites were also performed by him. He has admitted that Smt. Krishna Devi and Smt. Krishna Kumari are the wives of late Shri Tulsi Ram. PW-1 Smt. Krishna Kumari has deposed that she and Smt. Krishna Devi are widows of Shri Tulsi Ram, who was suffering from paralysis since two years prior to his death. He was looked after by them during the days of his illness. PW-2, PW-3, PW-4, PW-5, PW-7 and PW-8 had deposed that Smt. Krishna Devi and Smt. Krishna Kumari are widows of Shri Tulsi Ram. They have also stated that Shri Tulsi Ram was afflicted by paralysis. PWs and DWs have stated that Shri Tulsi Ram was aged about 70 years. He was paralytic. Smt. Krishna Devi and Smt. Krishna Kumari are widows of Shri Tulsi Ram. Shri Tulsi Ram used to get the land cultivated through one Shri Bhagat Ram. Shri Jaishi Ram has taken an active role at the time of execution of the Will dated 25.3.1983. He is the person, who has called witnesses Shri Rattan Chand and Shri Bahadur Singh to attest the Will at Hamirpur. It has also come in the evidence that Smt. Krishna Devi and Smt. Krishna Kumari are 8 wives of Shri Tulsi Ram. There is difference of signatures of deceased Tulsi Ram on Ext. D-1 and the endorsement Ext. D-1/A. DW-3 Shri Bahadur Singh was serving in the Army in the year 1983 and he has not stated that he was on leave during that period. He belongs to village Palial and Shri Tulsi Ram belonged to village Chaleta. Shri Tulsi Ram was ailing at the time of execution of the Will. There is no reason forthcoming why Shri Tulsi Ram had divested his wives from the property on the basis of Will dated 25.3.1983. There are contradictions in the statements of DW-1 and DW-3. The fact that the Will was registered is the only one of the circumstances to prove its genuineness. However, all the attending circumstances have to be taken into consideration to see whether the Will was executed in accordance with law or not. The learned Courts below have correctly appreciated the oral and documentary evidence while coming to the conclusion that the Will dated 25.3.1983 was shrouded with suspicious circumstances. Consequently, there is no force in this regular second appeal and the same is dismissed. No costs. RSA No. 317 of 1995: The only question raised in this regular second appeal by Shri Ramakant Sharma, Advocate is that the findings recorded by the learned District Judge, Hamirpur divesting Smt. Krishna Kumari from the property of late Shri Tulsi Ram is not sustainable. He has contended that the suit was filed by Smt. Krishna Devi and Smt. Krishna Kumari collectively and no objection has been taken by the defendant in his written statement about the maintainability of the 9 suit. According to him, the learned District Judge could not go beyond the pleadings of the parties while coming to the conclusion that Smt. Krishna Kumari being not legally wedded wife of Shri Tulsi Ram was not entitled to inherit his property. Mr. Rajnish K. Lal has supported the findings recorded by the learned District Judge. It has come in the evidence that Smt. Krishna Devi and Smt. Krishna Kumari were the wives of Shri Tulsi Ram. However, the moot question which is required to be adjudicated upon is whether the second wife is entitled to inherit the property when the earlier marriage is subsisting. The answer is in the negative. Smt. Krishna Kumari being the second wife and the earlier marriage being not dissolved in accordance with law, she could not inherit the property of late Shri Tulsi Ram. The findings recorded by the learned District Judge, Hamirpur are affirmed. Consequently, there is no force in this regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), J. November 26, 2008. (cr)