IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA Nos. 249 and 254 of 1995 Decided on : April 27, 2010 Santosh Kumar …Appellant Versus Durga Chand (Dead) through LRs and others ..Respondents Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant: Mr. Rajinder Sharma, Advocate. For the Respondents: M/s M.S. Thakur and Jeevesh Sharma, Advocates for respondents No. 1(a), 1(b), 1(c) and 1(d), 2, 3, 4, 5 and 6 in RSA No. 249 of 1995 and for respondents No. 1(a), 1(b), 1(c), 1(d), 2A, 2B, 2C, 2D and 3 in RSA No.254 of 1995. Surjit Singh, Judge (oral) By this judgment, two separate appeals, i.e. RSA Nos. 249/1995 and 254/1995, filed by the plaintiffs against the same judgment, i.e. judgment dated 8.3.1995 of learned District Judge, are being disposed of. These two appeals have been filed by the same party against the same judgment, because in one appeal decree of dismissal of their own appeal by the District Judge has been challenged and in the other, decree, allowing the Cross Appeal of the respondents-defendants, has been assailed. Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Plaintiffs-appellants filed a suit for declaration that they being children of a predeceased son of Smt. Nihatu Devi had inherited the suit property, measuring 1- 01-27 hectares, entered against Khata No.99, Khatauni Nos.232 to 235, alongwith respondents-defendants, who are sons of said Nihatu Devi and that the Will set up by the respondents-defendants, allegedly executed in their favour by said Smt. Nahitu Devi, was invalid, a piece of forgery and, hence, it did not confer any right, title or interest upon the defendants. It was pleaded that Nihatu Devi had never executed any Will, but the defendants set up one Will dated 6.12.1982, after the death of Nihatu Devi and on the strength of that will, had got the suit property mutated in their favour. 3. It was also pleaded that the suit property had devolved upon Smt. Nihatu Devi, under a Will of her husband Captain Vijay Singh and that that Will created only a life estate in favour of Nihatu Devi and she had no right to will away the property. Also, it was pleaded that the suit property was ancestral property of Captain Vijay Singh and under the custom, ancestral property could not have been willed away by Smt. Nihatu Devi. 4. Defendants contested the suit. They alleged that the suit was not maintainable, plaintiffs were estopped to file the suit by their acts and conduct, plaintiffs’ claim was barred by limitation and that Nihatu Devi had executed a valid Will in their favour on 6.12.1982. It was denied that …3… Nihatu Devi was a limited owner under the Will. It was also denied that the property came to Captain Vijay Singh from his ancestors. Further it was stated that on account of coming into force of Hindu Succession Act, Nihatu Devi had become absolute owner of the suit property. 5. Learned trial Court framed various issues, on the pleading of the parties and at the end of the trial, concluded that Smt. Nihatu Devi did not execute any Will and Will Ext. DW4/A, set up by the defendants, was shrouded by suspicious circumstances and, hence, it could not be said to be a genuine Will. On account of this finding, plea of the plaintiffs that the Will was result of fraud and misrepresentation was held to have become redundant. Property was held to have not been proved to be ancestral, in the hands of Captain Vijay Singh. Therefore, issue based on the plea that the parties were governed by custom, in the matter of alienation of ancestral property, was held to have become redundant. Suit was held to be maintainable. Issues No.5,6, 6A and 6B were not pressed before the learned trial Court. In view of the above findings, suit of the plaintiff was decreed. 6. Appeals were filed against the decree of the trial Court, both by the plaintiffs and the respondents- defendants. Plaintiffs were aggrieved by the finding that the property was not ancestral in the hands of Captain Vijay Singh. Respondents-defendants also filed Cross Appeal, …4… because the suit had been decreed and their plea that Smt. Nihatu Devi had made a Will in their favour was rejected. 7. Appellants-plaintiffs have now filed the present appeals. The same were admitted on the following substantial questions of law: “1. Whether property, subject matter of the Will, is to be established by the person who claims such property under the Will or by the person who challenge the validity of the Will. 2. Whether in the facts and circumstances as established on the record of the case, due and valid execution of the Will has not been proved. 3. Whether a property acquired under the Will before coming into force of the Hindu Succession Act by a female as a limited owner is saved by the provisions of Section 14(2) of the Hindu Succession Act. 4. Whether the defendants have been able to establish that the property in dispute is not the one which Smt. Nihatu got from her husband by way of Will Ext. PX dated 14.4.1940. 5. Whether Smt. Nihatu who got the property from her husband under his Will as a limited owner could alienate such property by way of Will.” …5… 8. I have heard the learned counsel for the parties and gone through the record. 9. There is no evidence on record, suggesting that the suit property was ancestral in the hands of Captain Vijay Singh, the husband of Smt. Nihatu Devi. One of the plaintiffs, namely Santosh Kumar, who appeared as PW-1, admitted that Captain Vijay Singh himself acquired much of the property, which he left on his death. Therefore, no fault can be found with the concurrent finding of the two Courts below that the suit property has not been proved to be ancestral. Question, whether it was for the defendants to prove that the property was self-acquired property of Captain Vijay Singh or it was ancestral property in the hands of Captain Vijay Singh, became irrelevant, when both the parties led evidence. As a matter of fact, it was for the plaintiffs to have proved that the property was ancestral, especially when they had pleaded custom to the effect that the property was inalienable and could not have been willed away, on account of its ancestral nature. 10. Suit property is not shown to have been acquired by Smt. Nihatu Devi as a limited owner, till her death under the Will. Will executed by Captain Vijay Singh, in the year 1940, is on record. The same is Ext. PX. It shows that Captain Vinjay Singh had four wives and many children from them. He bequeathed parts of his property in favour of his wives and the sons begotten from those wives. To Nihatu Devi he willed away absolutely the land which had …6… been purchased in her name. Besides that he bequeathed to her some houses situate in village Gadiara of Tehsil Palapur and some land situate in village Dogar Rampur, District Mintgummari, now in West Pakistan, (Will was executed in the year 1940, when Pakistan was part of India) till her life time. 11. Suit land has not been shown to have been allotted to Captain Vijay Singh in lieu of his land in Mintgummari. Therefore, it cannot be said that the suit land stands linked with the land bequeathed in favour of Smt. Nihatu Devi, under the Will as a life estate holder. 12. Will set up by the defendants, which is Ext. DW4/A, has been proved by the two attesting witnesses, namely DW-4 Jogeshwar Singh and DW-5 Lekh Chand. Both of them testified that Will had been scribed at the instance of Smt. Nihatu Devi by Sagar Chand, a Practicing Scribe. Scribe was dead, when the evidence was recorded. His son DW-2 Narain Singh appeared with the relevant register and testified that Will Ext. D W4/A had been scribed by his father Sagar Chand and an entry to that effect existed in the register. 13. Will is alleged to be shrouded by suspicious circumstances. First alleged circumstance is that there could not have been any reason for deceased Nihatu Devi to have excluded the plaintiffs, who are children of her pre- deceased son, from inheriting the suit property. Reason for disinheriting the plaintiffs has been stated by PW-1 Santosh …7… Kumar, one of the plaintiffs himself. He has stated that his parents died when he was 3-4 years old and ever since he had been living at his Mama’s place in a village in Ropar District of Punjab and that it is his Mama, who arranged for his education and also got him married. Defendants are the sons of the testatrix. 14. Another alleged suspicious circumstance is that the two attesting witnesses of the Will are stock witnesses of the area in the matter of execution of documents. It has come in the evidence that both the witnesses are Numberdars of the area. Normally, people living in villages approach the Numberdars, Sarpanchas and Panchas to become witnesses to the documents intended to be executed by them. Therefore, there is nothing suspicious about these two witnesses having attested the Will Ext. DW4/A. 15. In view of the above stated position all the substantial questions of law, on which the appeals have been admitted, are answered against the appellants. Consequently, both the appeals are dismissed. April 27, 2010 (ss) (Surjit Singh), J