IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 641 of 2000 Date of Decision: 29th April, 2011 Raghu Ram Appellant/plaintiff Versus Smt. Bimla and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.Bhupender Gupta, Sr. Advocate with Mr. Lovneesh Kanwar, Advocate. For the respondents: Mr.Ashok K.Sood, Advocate, for respondents No.1 and 16. None for other respondents. Sanjay Karol, J. (Oral) This Regular Second Appeal was admitted on the following substantial questions of law:- 1. Whether the Lower Appellate Court has misread the oral and documentary evidence while upholding the validity of the Will Exhibit D-1, propounded by the defendant- respondent No.1 Smt. Bimla, was not the Will dated 8th April, 1985 Exhibit D-1 shrouded by suspicious circumstances? 2. Whether the Lower Appellate Court has exceeded its jurisdiction in replying upon and accepting the statement of Sub Registrar, who claims to have registered the Whether the reporters of Local Papers are allowed to see the Judgment? 2 Exhibit D-1 by ignoring the evidence of Dr.K.P.Singh and DW-5/A proving that the executant was an indoor patient on the said day but also was not in a stable condition, physical and mental, without there being any evidence adduced by the propounder defendant-respondent No.1 as to who give the permission to the executant to leave the hospital? 3. Whether the Lower Appellate Court has committed grave illegality and irregularity in not examining and reassessing the evidence adduced by the plaintiff-appellant in support of the Will Exhibit P-1 so as to examine due attestation and execution thereof, particularly when the Will Exhibit D-1 pertains only to the half share in the property, could the Will Exhibit P-1 be ignored by the Lower Appellate Court by merely holding that Exhibit D-1 is later in point of time? Was not it incumbent for the Lower Appellate Court while considering the question of succession of the Estate of half share of the deceased Smt. Hardei without examining the validity, genuineness and due attestation of Exhibit P-1? 2. Raghu Ram – plaintiff filed a suit for declaration and consequential relief of possession with regard to suit property, on the basis of Will dated 18.1.1985 (Ext.P-1), executed by one Smt. Hardei widow of Bhagat Ram, resident of Mauza Khanot, Sub Tehsil Baldwara, Tehsil Sarkaghat, District Mandi, H.P. According to 3 plaintiff, in terms of Will (Ext.P-1) entire estate of Smt. Hardei, who died without any surviving legal heirs (Class-I and Class-II), he succeeded to her. The suit was filed against Smt. Bimla Devi, defendant No.1, who claimed to have succeeded to the extent of half share in the estate of Smt. Hardei on the strength of another Will dated 8.4.1985 (Ext.D-1), registered on 9.4.1985. Defendants No.2 to 17, namely, Bansi, Nand Lal, Khayali, Smt. Mahanti, Smt. Chinti, Smt. Santi, Pavan Kumar, Smt. Jamna, Smt. Kalpna, Smt. Sandhya, Smt. Lajo, Smt. Gita, Brij Lal, Sant Ram, Jeet Ram, Ishwar Dass, respectively were arrayed as parties for the reason that they claimed to be collaterals of deceased Smt. Hardei and thus entitled to inherit the estate. Shri Panchhi Ram defendant No.18 claimed himself to be owner of the entire estate by virtue of yet another Will executed in his favour by deceased Smt. Hardei. According to him, he was also the adopted son of deceased Smt. Hardei. 3. The suit was resisted by the defendants inter alia, on various grounds. Counter claim in the suit was filed by defendant No.18 Smt. Panchhi Ram seeking possession of the suit land. On the basis of the pleadings of the parties, following issues were framed:- 4 (i) Whether the Will in favour of plaintiff has been revoked by Hardei, as alleged? OPP (i-A) Whether deceased Hardei has executed valid will in favour of the plaintiff, as alleged? OPP ii) Whether valid will has been executed by Hardei in favour of defendant No.1 as alleged? OPD iii) Whether the defendant Nos. 2 to 16 are the heirs to the deceased Hardei, if so its effect? OPD iii-A)Whether deceased Smt. Hardei executed a valid will in favour of defendant No.17 and after that no valid will so far has been executed? OPD-17 iii-B)Whether defendant No.18 is appointed and adopted son of deceased Hardei if so to what effect? OPD iii-C) Whether will executed in favour of defendant No.18 by deceased Hardei in the year 1984 is final and last Will? OPD-18 iii-D) Whether no valid will so far has been executed in favour of plaintiff and defendant No.1? OPD 17& 18 4. On the basis of the evidence led by the parties and material placed on record, the trial Court found that the propounder of the Wills i.e. the plaintiff, defendant No.1 and defendant No.18 were not able to prove that the respective Wills were executed in accordance with the Indian Succession Act. They were shrouded with suspicious circumstances. Defendant No.18 could also not prove that he was the adopted son of deceased Smt. Hardei. Consequently, plaintiff’s 5 suit as also the counter-claim of defendant No.18 was dismissed in terms of judgment dated 26.4.1994 passed by Sub Judge Ist Class, Sarkaghat, District Mandi, H.P. in Civil Suit No.105/1985, titled as Raghu Ram vs. Smt. Bimla and others. However, while doing so, the Court declared defendants No.2 to 16 to be the collaterals of equal degrees and as such entitled to succeed to the estate of deceased Smt. Hardei. 5. Feeling aggrieved, both Raghu Ram and Smt. Bimla Devi, plaintiff and defendant No.1, respectively, filed individual appeals before the District Judge, Mandi, H.P., which stand decided in terms of impugned judgments and decrees dated 28.9.2000, passed by Additional District Judge, Mandi, H.P. in Civil Appeal No.39 of 1994, titled as Smt. Bimla vs. Raghu Ram and others, and Civil Appeal No. 23 of 1995, titled as Raghu Ram vs. Smt. Bimla and others. Separate judgment has been passed by the first Appellate Court in the appeals but one is mere reproduction of another. 6. The first Appellate Court while allowing the appeal filed by Smt. Bimla, defendant No.1, held that she was able to prove the factum of genuineness, authenticity and valid execution of the Will (Ext. D-1). However while doing so, Court below did not return any findings with regard to the genuineness, authenticity and valid execution of Will (Ext.P-1) 6 propounded by the plaintiff. The judgment is totally silent on this aspect. Thus the plaintiff has filed the instant appeal. 7. Importantly, defendants No.2 to 17 have not assailed the findings returned by the first Appellate Court. So Will Ext.D-1 stands accepted by them. Defendant No.18 also did not file any appeal assailing the judgment and decree passed either by the trial Court or the first Appellate Court. Hence finding of fact qua him also stands accepted. Before this Court, except for the legal heirs of original defendant No.18, original defendant No.16 who is in fact the husband of defendant No.1, original defendants No.2 to 17/their legal representatives have also not chosen not to appear and contest the appeal. Even during the course of hearing legal representatives of defendant No.18 and original defendant No.16 have not opposed the appeal or made any submission. 8. During the pendency of the present appeal, plaintiff Raghu Ram and defendant No.1 Smt. Bimla arrived at a settlement and got the following statements recorded today:- “Statement of Shri Raghu Ram, aged 70-71 years, son of Shri Naresh Dass, R/o Village Khudla, Illaqua Hatli, Tehsil Sarkaghat, District Mandi, H.P. On S.A. 29th April, 2011 Stated that I admit Will Ext.D-1 dated 8.4.1985 executed by Smt. Hardei in favour of Smt. Bimla Devi, defendant No.1 to the extent of half share in the 7 suit property. I have no objection in case half share in the suit property goes to Smt. Bimla Devi. I will not object for partition of the suit property between myself and Smt. Bimla Devi, defendant No.1. On the basis of Will Ext.D-1 dated 8.4.1985 and Will Ext.P-1 dated 18.1.1985, I and Smt. Bimla Devi are joint owners in possession to the extent of half share each. At the time of partition, I will not object that the area of the land to the extent of half share, which is in possession of Smt. Bimla Devi, shall remain intact provided in case it is found that Smt. Bimla Devi is in possession of the area more than her entitlement i.e. half share, she will hand over the vacant, peaceful possession of the same to me without any objection. Smt. Bimla Devi will raise no objection in case the decree is passed against the other defendants from whom I shall be entitled to recover possession of the land and Smt. Bimla Devi shall not raise any objection of any kind. On the basis of the settlement, only myself and Smt. Bimla Devi are entitled to the suit property to the extent of half share each and other defendants do not have any claim whatsoever. I shall have no objection in case revenue entries are corrected on the basis of the decree passed by this Hon’ble Court.” “Statement of Smt. Bimla Devi, aged 65-66 years, wife of Sh. Jeet Ram, resident of Village Khanot, Illaqua Hatli, Tehsil Sarkaghat, District Mandi, H.P. On S.A. 29th April, 2011 Stated that I have heard the statement of plaintiff Shri Raghu Ram, which I admit to be correct. I further admit that by virtue of Will Ext.D-1 dated 8.4.1985, the suit property of Smt. Hardei has devolved upon me to the extent of half share only. I admit that the remaining half share in the suit property by virtue of Will Ext.P-1 dated 18.1.1985 has devolved upon Shri Raghu Ram, 8 plaintiff. By virtue of Wills Ext.D-1 and Ext.P-1 myself and Shri Raghu Ram have become owners in equal shares to the suit property. I agree that the suit property shall be partitioned for which I shall not raise any objection provided that the land which is in my possession shall remain intact with me and in case I may be found in possession of area in excess of my entitlement i.e. half share, I shall hand over the vacant possession of the same peacefully in favour of Shri Raghu Ram, plaintiff. I will not raise any objection for partition of the suit property and whatever land/property shall go to the share of Shri Raghu Ram he shall be entitled to recover the possession of the same from the occupier of the land for which I shall not raise any objection. I shall have no objection in case revenue entries are corrected on the basis of the decree passed by this Hon’ble Court.” 9. Terms of compromise as recorded hereinabove entered into between the plaintiff and defendant No.1 are inter se binding upon them. With the recording of the statements of parties, the matter could have been put to rest here, but, however, all parties to the suit are not party to the compromise. Consequently, I proceed to decide further. 10. In the judgment passed by the first Appellate Court, there is no finding/discussion with regard to Will Ext.P-1. The Court seriously erred in proceeding on the assumption that Will (Ext.D-1), being the last validly executed and registered Will of deceased Smt. Hardei was in supersession of all earlier Wills and consequently the entire estate of Smt. Hardei vested 9 in Smt. Bimla Devi. It is here that the Court seriously erred in not properly appreciating and construing the terms of Will (Ext.D-1), which restricted the claim of defendant No.1 only to the extent of half share in the entire estate of Smt. Hardei. Consequently, Smt. Bimla Devi was entitled to and should have succeeded only to the extent of the share bequeathed in terms of Will Ext. D-1. 11. While upholding the validity of Will Ext.D-1 the first Appellate Court has recorded findings in paras 20, 21 and 22 of the judgment. I see no reason to differ with the same. Not only there was not much challenge to the aforesaid findings by the appearing parties but in fact plaintiff has accepted the validity of Will in terms of the statement recorded today. That apart, having gone through the relevant statement of witnesses, namely, Smt. Bimla Devi (DW- 1), Shri Jagdish Parkash (DW-2), Shri Dev Raj (DW-6), it is quite apparent that the Will was executed by Smt. Hardei in a proper and sound state of mind and that the same was executed and registered on the asking of Smt. Hardei. Smt. Bimla Devi has been able to sufficiently prove that the deceased had voluntarily executed the Will. 12. On the question of validity of Will (Ext.P-1), what weighed with the trial Court was the contradiction in the statements of Shri Raghu Ram – 10 plaintiff (PW1) and Shri Mahant Ram (PW-3), with regard to the place from where Smt. Hardei had come to get the Will executed and registered at Bilaspur. The Court, in my considered view, has been too presumptive in doubting the presence of witness Shri Mahant Ram (PW-3) at Bilaspur on the said date. Will (Ext.P-1) was executed and registered on 18.1.1985. It was witnessed by Mahant Ram (PW-3) and Shri Gopala Ram. The Courts below, in my considered view, did not take into account the plaintiff’s entire evidence, rendering the findings to be perverse and not based on proper and complete appreciation of material on record. Both the Courts erred for different reasons. From the testimonies of Shri Raghu Ram (PW-1), Shri Amar Nath (PW-2), Shri Mahant Ram (PW-3), Shri Gopal Dass (PW-4) and Dr.K.P.Singh (PW-5), it is quite apparent that on the date of execution of the Will even though Smt. Hardei was aged 80 years, but, however, she was in a sound and disposing state of mind. No doubt, she was undergoing treatment at the Hospital at Bilaspur and was admitted there for some time, but however, it stands proved that she had herself visited PW-2 Document Writer and got the Will prepared, which was duly witnessed by Shri Mahant Ram (PW-3). Before visiting the scribe she had sought permission from the concerned Doctor to leave the Hospital for some time. Apparently this was so done 11 for the purposes of getting the Will executed and registered. The Doctor has also proved the factum of mental health of Smt. Hardei, which was stable on that date. The contradiction in the statement of PW-3 and PW-1 is minor. Khanot, native village of Smt. Hardei is at a distance of 2 kms. from Bilaspur. It is nobody’s case that Khanot is not accessible by road. Smt. Hardei could have travelled by conveyance to Khanot and returned to Bilaspur alongwith PW-3. It is no body’s case, as proved on record that Shri Raghu Ram – plaintiff was ever associated with the execution of the Will. Shri Mahant Ram has categorically deposed that he was present at the time of execution of the Will which was read over to the witnesses as also to the executant and that they signed in the presence of each other. Thus it cannot be said that the Will is shrouded by suspicious circumstances. Thus, in my considered view, plaintiff has also been able to successfully show that deceased Smt. Hardei has been able to execute the Will (Ext.P-1). 13. No doubt Will (Ext.P-1) entitles the plaintiff to succeed to the entire estate of deceased Smt. Hardei, but, however, in view of Ext.D-1, which is executed later in point of time and the statements of the contesting parties, plaintiff’s right is restricted to the extent of 50% share in the estate of Smt. Hardei. 12 14. The trial Court seriously erred in holding defendants No.2 to 17 to be entitled to the estate of deceased Smt. Hardei. There was no claim to this effect on their behalf. At best plaintiff’s suit alongwith the counter-claim filed only by defendant No.18 could have been dismissed. 15. With regard to issue No.(iii), even though first Appellate court has not returned any findingds, but, however, in the absence of any serious challenge to the Wills Ext.P-1 and Ext.D-1, by filing any counter claim or appeal, as also for the reasons recorded hereinabove defendants No.2 to 17 cannot be held to be entitled to succeed to the estate of deceased Smt. Hardei. 16. Consequently, appeal is partly allowed. The substantial questions of law, to the extent of their relevancy, are answered accordingly. 17. For all the aforesaid reasons, including the statements made by the plaintiff and defendant No.1 today in the Court, the suit is decreed to the extent that both plaintiff and defendant No.1 are held to be joint owners in possession of the suit property in equal share. On the basis of the statements of plaintiff and defendant No.1, defendant No.1 is entitled to half share of the estate of Smt. Hardei and remaining half share has to go to the plaintiff. Plaintiff is entitled to recover possession of 50% of 13 his share from the defendants except to the extent agreed upon by the plaintiff and defendant No.1 in terms of statements recorded today. Contesting parties are bound by the statements recorded today. Decree- sheet be prepared accordingly. Statements of the plaintiff and defendant No.1 shall form part of the decree-sheet. However, there shall be no order as to costs. 29th April, 2011 (Sanjay Karol) (C) Judge.