IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 214 of 2002. Judgment reserved on 24.10.2011. Date of decision: 11.11.2011 _________________________________________________ Smt. Asha Rani ….Appellant. Versus Smt. Rami and anoher ….Respondents. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the appellant : Mr. Shrawan Dogra, Advocate. For respondent : Mr. Bhupinder Gupta, Sr. Advocate, with Mr. Neeraj Gupta, Advocate. Surinder Singh, J. The plaintiff was unsuccessful in both the courts below as such filed the present Regular Second Appeal which was admitted on the following substantial questions of law: (i) Whether the presumption regarding paternity under Section 112 of the Indian Evidence Act could be rebutted simply by oral testimony and by ignoring the documentary evidence regarding such paternity? 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - (ii) Whether the over involvement of the propounder of the Will at the time of its execution and exclusion of natural heir from inheritance in the said Will and further there being no reference to the natural heirs in the Will executed by Jindu Ram are not sufficient suspicious circumstances regarding valid execution of the Will Ext. DW2/A? 2. Admittedly, the suit land as detailed in para 1 of the plaint was owned by late Shri Jindu Ram. The case of the plaintiff has been that Shri Jindu Ram had two wives Smt. Bhyani Devi and defendant Rami Devi. From Smt. Bhyani Devi, the plaintiff was born but later Shri Jindu Ram had divorced her and married Rami Devi. He died intestate on 13.4.1994 leaving behind the plaintiff as his daughter and defendant Rami Devi his widow his heirs. Thus she claimed half of the share in the suit land. It is alleged that in order to usurp the property with an ulterior motive, a forged and fictitious Will dated 12.12.1993 was asserted by the defendants on the basis of which mutation No. 5334 was attested and accepted in her favour behind the back of the plaintiff and further that Jindu was an old person suffering from asthama since long, he was also not in - 3 - a free disposing state of mind, the Will aforesaid is shrouded by suspicious circumstances as there is no reference of the plaintiff being his daughter and there was no justified reason to disinherit her despite the fact that he was affectionate to her and she had been looking after the deceased constantly since the year 1984. Further that the defendants on account of fiduciary relations were in a position to dominate his will. Thus prayed for a decree of declaration to the effect that after the death of her father Shri Jandu she inherited his estate to the extent of ½ share, with defendant No. 1, this Will was wrong and a fictitious document and the mutation No. 5334 attested behind her back was nonest on her right of succession with a consequential relief of joint injunction. 3. The suit was resisted and contested by the defendants by filing separate written statements. 4. Defendant No. 1 vide her written statement denied that the plaintiff is the daughter of Jindu, thus she questioned her locus-standi to file the present suit and challenge to the Will. She also averred that Bhyani had no issue during the subsistence of her - 4 - marriage with Jindu till she sought divorce. She denied that a false and forged Will of Jindu was ever prepared by her. 5. Defendant No. 2 is the real nephew of Jindu. In his written statement he admitted that Bhyani Devi was the first wife of Sh. Jindu who was divorced and that defendant No. 1 was unable to look after aged Jindu Ram, manage his property as well as the house-hold affairs, thus Jindu was entirely dependent upon him and his father Tek Chand. They rendered all type of help to him to manage the affairs. In lieu thereof, he executed the Will Ext. DW2/A dated 12.12.1993 registered on 13.12.1993 whereby he bequeathed the moveable and immoveable property in favour of defendant No. 2. It was also averred that last rites were performed by him. He further averred that even after the death of Jindu, he had been rendering all help to defendant No. 1. He asserted that the mutation on the basis of Will was rightly sanctioned in their favour. He though admitted that the deceased was suffering from asthama but was in a perfect mental state, capable of executing the Will. It is denied that it was a forged - 5 - document shrouded by suspicious circumstances. He also denied the plaintiff to be daughter of Jindu Ram. 6. Plaintiff chose to file replication whereby he asserted even paras of the plaint on merit. 7. On the basis of the pleadings of the parties, following issues were framed by the learned trial Court:- (i) Whether the plaintiff is daughter of Jindu Ram deceased ?OPP (ii) If issue No. 1 is proved, whether the plaintiff is owner in possession of ½ share in the estate of Jindu Ram deceased in suit, as alleged? OPP (iii) Whether Sh. Jindu Ram deceased executed valid Will dated 12.12.1993 in favour of defendant No. 2 ?OPD-2 (iv) Whether the plaintiff has no locus standi to file the present suit?OPD-1 (v) Whether the defendant No. 1 is exclusive owner in possession of the suit property, as alleged?OPD-1 (vi) Relief. 8. After hearing the parties and going through the record, Issues No. 1, 2 and 5 were answered in negative and Issue No. 3 in affirmative. Consequently, the suit of the plaintiff was dismissed. Her appeal was also - 6 - dismissed by the learned District Judge. Hence the present Regular Second Appeal under Section 100 of the Code of Civil Procedure, which was admitted on the above substantial questions of law. 9. Shri Shrawan Dogra, learned counsel for the plaintiff vehemently argued that the Courts below conveniently ignored the divorce deed Ext. PW2/A whereby deceased Jindu Ram himself has acknowledged the paternity of the plaintiff. He further submitted that otherwise also, the plaintiff took birth during the subsistence of the marriage, thus under Section 112 of the Indian Evidence Act it is a conclusive proof regarding her paternity. He also ventilated that copy of birth Register Ext. PC was not properly appreciated and that mere discrepancy regarding the place of birth therein cannot be a ground to reject it. He further submitted that the Will Ext. DW2/A in favour of the defendants excluding the natural heir without any cogent reason is itself a doubtful circumstance, which fact has also not been rightly appreciated by the Courts below. Further that defendant No. 1 even stated that no Will was ever executed by Sh. Jindu Ram during his life time; therefore, these material aspects, - 7 - raised the question about its probity and were wrongly brushed aside. 10. Contra Shri Bhupinder Gupta, learned Senior Advocate duly assisted by Shri Neeraj Gupta, Advocate forcefully argued that the plaintiff failed to prove that she took birth during the subsistence of marriage of her mother Bhyani Devi with Shri Jindu Ram and both the documents referred to above on this aspect of the matter are quite contradictory and do not connect the plaintiff with the parentage of Jindu. It is also argued that the reference made in the divorce- deed to a child is not connected with the plaintiff and also that the School admission slip Ext. PC and the birth certificate both are contradictory and shatter the stand taken by the plaintiff. He further submitted that the Will in question stands proved and is free from any doubt. Therefore, no interference is called for. 11. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the record. 12. Admittedly Smt. Bhyani Devi was the first wife of deceased Shri Jindu Ram who later sought divorce and married defendant Rami Devi. The moot question - 8 - in this case is whether the plaintiff is the daughter of Shri Jindu Ram from first wife Bhyani Devi. To prove this fact, the plaintiff mainly based her claim on the basis of divorce deed Ext. PW2/A dated 10.5.1967. 13. The plaintiff as PW1 stated that since her parents were not pulling on well accordingly they separated from each other when she was only five months old. Thus she resided along with Bhyani Devi, her mother in the parental house. She further stated that she took birth in the house of her maternal grand father in village Bhekhali on 6.1.1968 whereas her date of birth shown in the hospital record is 9.1.1968. She also examined her mother PW2 Bhyani Devi and stated that plaintiff’s entry in the birth Register was made by her father Jindu Ram in Pulga Panchayat, whereas she was born in Bhekhali. In examination-in-chief she stated having taken birth in the hospital and also stated that after 25 days of her birth her mother taken her to village Pulga and remained there with her husband but still he maltreated her and ultimately sought divorce by executing customary divorce on 10.5.1967 which was scribed by Hira Lal petition writer thus whole statement make her stand dubious. Further, she also stated that - 9 - Sh. Jindu Ram got admitted her in the School. Since Hira Lal scribe of the divorce deed had died, as such it was sought to be proved from PW3 Shri Bishan Lal his son. He produced register wherein it contained entry of divorce deed at Sr. No. 361 on the said date, but there were lot of cuttings and it is thumb-marked by her mother not by Jindu Ram. 14. On scrutiny of divorce deed, I find a reference to the effect that a female child was born to PW2 Bhayani Devi in the month of Posh, i.e., December, 1966 or may be not later than the first week of January, 1967. Whereas the copy of the application form Ext. DW6/A with respect to the admission of the plaintiff in the School, her date of birth is mentioned as 6.1.1968. Thus there is a difference of net one year. Further birth register Ext PC records the birth of a female child on 19.1.1967 to Smt. Bhyani Devi and Sh. Jindu Ram at village Pulga. Again there is a difference of one year in Ext. DW6/A and Ext. PC. Further as per PW1 on the day of examination, on 11.4.1997 plaintiff was 30 years old meaning thereby, the plaintiff would complete this age in the month of Posh, i.e., December or January 1st week and the date of birth recorded as 19.1.1967 in Ext. - 10 - PC also does not match with her narration. Thus the logical conclusion is that the divorce deed Ext. PW2/A dated 10.5.1967 reflecting the birth of daughter does not pertain to her but to some other child. Therefore, the paternity of Sh. Jindu Ram qua plaintiff stands not proved at all, though PW2 Bhyani Devi is proved to be her mother having born after the divorce. 15. PW3 Bishan Lal is the son of scribe. He admits cuttings and over-writing in the Register itself with respect to divorce deed. The witnesses cited in the divorce deed have also not been examined by the plaintiff for the best reasons known to her. The plaintiff is not proved to be the daughter of Shri Jindu. Had the plaintiff been the daughter of Shri Jindu Ram, there would have been some recital in the Will. 16. It is proved that Shri Jindu Ram died issueless leaving behind his defendant widow. On examination, the Will stands duly proved. DW2 Shri H.C. Thakur, Advocate was an attesting witness. He testified that the Will Ext. DW2/A was scribed by Shri Chuhru Ram Deed writer on 12.12.1993 at the instance of Shri Jindu Ram in his presence and also in the presence of Amar Singh, Mahinder Singh and Mani Ram witnesses. The - 11 - same was read over and explained to the testator. After admitting the same to be correct, he appended his signatures thereon in the presence of the witnesses and witnesses also put their signatures in his presence. He also stated that he knew Shri Jindu Ram personally and further stated that Jindu Ram presented it before the Sub-Registrar for its registration which was again read over and explained to him and after admitting its correctness, he put his signatures before him. Even he disputed that the plaintiff was his daughter. The marginal witness DW 3 Mani Ram and scribe DW 5 Chuhru Ram also afforded corroboration to the above statement. This Will was duly entered by the deed writer in the relevant register. Even defendant No. 1 in her statement admitted that defendant No. 2 and his father were looking after and rendering services in cultivation of their land and further that the plaintiff was not at all the daughter of deceased Shri Jindu Ram. She also admitted the correctness of the Will in the cross-examination of defendant No. 2. Thus the Will Ext. DW2/A stands fully and duly proved and is free from any suspicious circumstance. Therefore, I do not find that the propounder of the Will was ever involved and - 12 - exercised undue influence in the execution of the Will. In these circumstances, rule propounded in Section 112 of the Indian Evidence Act does not apply to the case in hand and the Will in question is held to be a valid and legal document. 17. The substantial questions of law are accordingly answered. 18. The appeal sans merit and is accordingly dismissed. 19. Parties to bear their own costs. November 11, 2011 (Surinder Singh), (cm) Judge.