IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA. No.: 232 of 2003. Reserved on: 18.06.2011. Decided on: 05.07 .2011. ______________________________________________ Smt. Verma Devi alias Tanzin Dolma. … Appellant. Versus Shri Kasang. … Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellant : Mr. Bhupender Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. For the Respondent : Mr. Rajnish K. Lall, Advocate vice Mr. K.D. Sood, Advocate. Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree passed by learned District Judge, Kullu, District Kullu in Civil Appeal No.56 of 2002, dated 20.5.2003. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - 2. Material facts necessary for adjudication of this regular second appeal are that the respondent/plaintiff (hereinafter referred to as”the plaintiff” for convenience sake) has instituted a suit against the appellant/defendant (hereinafter referred to as “the defendant” for convenience sake), for declaration with consequential relief of injunction. According to the plaintiff, Pasang Butti was his wife and was owner in possession of land comprised in Khata/Khatauni No.263/509, Khasra No.613, measuring 0-8-0 bighas situate in Phati Nasogi, Kothi and Tehsil Manali, District Kullu. There was 2½ storeyed tin roofed building constructed over the suit land. The suit land was inherited by Pasang Butti from her previous husband, Pema. Pasang Butti married with the plaintiff and resided with him till her death on 18.7.2001. He was looking after Pasang Butti. He was sole legal heir and has inherited the suit land on the basis of intestate succession. The plaintiff has further alleged that the defendant in connivance with the revenue officials got mutation No.3612 attested and sanctioned on 15.9.2001 on the basis of Will dated 7.12.2000, Ex.DW-2/A. According to him, the Will was forged and fictitious. It is in these circumstances, the present suit was filed by the plaintiff. 3. Defendant contested the suit. On merits, Smt. Pasang Butti was admitted to be owner in possession of the suit land alongwith 2½ storeyed house existing thereon. Marriage of Pasang Butti with the plaintiff was also admitted. According to the - 3 - defendant, Will was executed in her favour by Pasang Butti on account of services rendered, on 7.12.2000. According to her, Will was genuine. The sanctioning of the mutation on the basis of the Will had been justified. 4. Replication was filed by the plaintiff. Issues were framed by the trial Court on 22.1.2002. The learned trial Court decree the suit on 10.9.2002 whereby the plaintiff was declared as owner in possession of the suit land and Will dated 7.12.2000 was declared null and void and the same was set aside. Mutation attested in favour of the defendant on the basis of Will was also set aside. Plaintiff was declared as sole heir who inherited the estate of Pasang Butti. The defendant was restrained by way of permanent prohibitory injunction to interfere in the ownership and possession of the plaintiff. Thereafter the defendant preferred an appeal against the judgment and decree passed by the learned trial Court dated 10.9.2002 before the learned District Judge, Kullu. He dismissed the same on 20.5.2003. Hence, this regular second appeal. 5. This appeal was admitted by this Court on 22.8.2003 on the following substantial questions of law:- 1. Whether the two Courts below have misconstrued and misinterpreted the provisions of Section 15(2) of the Hindu Succession Act, 1956? 2. Whether the two Courts below have misunderstood and misapplied the provisions of - 4 - Section 68 of the Evidence Act and Section 63 of the Indian Succession Act? 6. Mr. Bhupender Gupta, learned Senior Advocate with Ms. Charu Gupta, Advocate representing the defendant has strenuously argued that both the Courts below have misconstrued and misinterpreted the provisions of Section 15(2) of the Hindu Succession Act and have also misunderstood and misapplied the provisions of Section 68 of the Evidence Act as also Section 63 of the Indian Succession Act. 7. Mr. Rajnish K. Lall, Advocate appearing vice Mr. K.D. Sood, learned counsel for the plaintiff has supported the judgments and decrees passed by both the courts below. 8. I have heard the learned counsel for the parties and gone through the pleadings carefully. 9. Since both the substantial questions of law are interlinked and interconnected, they are taken up together for determination to avoid repetition of discussion of evidence. 10. Plaintiff has appeared as PW-1. According to him, he was married to Pasang Butti. They lived as husband and wife happily. The suit land was inherited by Pasang Butti from her previous husband. She remained bed ridden for about 11 to 12 months prior to her death. PW-2, Sonam Ram has supported the version of PW-1. According to him, plaintiff has served Smt. Pasang Butti. She also remained ill before her death. Similarly, - 5 - PW-3, Karam Chand alias Karma has deposed that Pasang Butti remained ill for about 10/11 months prior to her death. 11. Defendant has appeared as DW-1. She stated that Pasang Butti during her life time was looked after and maintained by her. In lieu of the services rendered, the Will was executed in her favour. According to her, the Will was executed in presence of plaintiff and scribe DW-2, Chhavinder Thakur and Atma Ram (DW- 3), who is attesting witness. 12. It is amply proved o the basis of evidence led by the parties that Pasang Butti was an old lady. The relation between the plaintiff and Pasang Butti were cordial. Plaintiff was looking after Pasang Butti. 13. The Will was executed on 7.12.2000. It has been scribed by Chhavinder Thakur, DW-2. According to DW-1 (defendant), plaintiff was also present at the time of execution of the Will Ex.DW-2/A. However, DW-2, Chhavinder Thakur has deposed that he cannot state whether plaintiff was present at the time of execution of Will or not. DW-3, one of the marginal witnesses, Shri Atma Ram has also not deposed whether the plaintiff was present at the time of execution of the Will. DW-8, Shamsher Singh has not deposed that the plaintiff was present at the time of execution of Will Ex.DW-2/A though the specific stand taken by the defendant was that plaintiff was present at the time when the Will was executed and he was the consenting party. - 6 - 14. DW-2 had admitted that defendant explained the contents of the Will to which Pasang Butti agreed. The defendant has played active role in the execution of the Will. It also proves that the Will Ex.DW-2/A was written at the instant of propounder and not at the instance of Pasang Bhutti. DW-2 has deposed that the Will was scribed by him in his office. However, the defendant has deposed that it was signed outside Tehsil Office. According to Chhavinder Thakur, Will was scribed at 2.30/3.00 p.m. However, in the endorsement before the Sub-Registrar, the time given is 11.30 a.m. Pasang Butti was also bed ridden as per statements of DW-1, DW-2 and DW-3. She was living with the plaintiff happily. One of the marginal witnesses of the Will is DW-3, Atma Ram. He has deposed that the Will was scribed by DW-2, Chhavinder Thakur and the other marginal witness was one Shri Prem Chand. However, as per the contents of Will DW-2/A, the other marginal witness of the Will is Shri Shamsher Singh. It casts suspicion whether Prem Chand or Shri Shamsher Singh (DW-8) was the marginal witness. DW-8, Shamsher Singh could not explain satisfactorily that he is also known as Prem Chand. He has not proved by leading any tangible evidence in the form of bank account, school record etc. that he was also known as Prem Chand. It further casts doubt on the execution of Will Ex.DW-2/A. DW-8 is the real brother of defendant. Defendant is not related to Pasang Butti. Thus, it is not understandable why Pasang Butti will - 7 - exclude her husband and execute the Will in favour of a stranger. DW-3, Atma Ram has admitted that Pasang Butti used to speak in her mother tongue and did not understand Hindi language. He however, again stated that she had little knowledge regarding Hindi. DW-8, Shamsher Singh has categorically admitted that Pasang Butti had little knowledge of Hindi language. In case Pasang Butti was not conversant with the Hindi language, how the contents of Will could be read over and explained to her. This could only be done in her own language. DW-1 has admitted that the papers on which Will Ex.DW-2/A was written were brought by Shri Chhavinder Thakur, DW-2. However, DW-2, Chhavinder Thakur has deposed that the judicial papers were purchased by deceased Pasang Butti from the stamp vendor. There is no evidence on record to prove that Pasang Butti put her thumb impression on the Will in presence of the marginal witnesses. DW-3, Atma Ram, marginal witness of the Will has deposed that the other marginal witness of the Will was Prem Chand. However, as noticed above, the other marginal witness was Shamsher Singh, who is real brother of the defendant. 15. What emerges from the evidence as discussed hereinabove is that the Will in question DW-2/A, dated 7.12.2000 has not been proved in accordance with law. There are contradictions about the manner and place where the Will was scribed. There are also contradictions in the statements of DWs at - 8 - what time the Will was executed. There are also contradictions as to who purchased the stamp papers. There are also contradictions as to who read over the contents of the Will Ex.DW-2/B to Pasang Butti. There is also contradiction whether it was prepared in presence of Prem Chand, who was the second marginal witness or in the presence of Shamsher Singh. It is also not disputed that the relation between plaintiff and Pasang Butti were cordial. He was looking after Pasang Butti. There is no relationship of defendant with Pasang Butti. Pasang Butti has inherited the suit property from her previous husband, Pema. She has died on 18.7.2001 and thereafter the plaintiff has inherited the suit property. Pasang Butti was not conversant with Hindi language, she being Khampa. The contents of Ex.DW-2/B could only be explained to her in the language she was conversant with and not in Hindi. 16. The defendant has actively participated at the time of execution of the Will. There are also contradictions in the statements of the DWs at whose instance the Will in question was dictated. There is ample evidence on record that Pasang Butti was ill before execution of Will and before her death for about 10-11 months. The stand of defendant in the written statement was that the plaintiff was also present at the time of execution of the Will, however, this fact has not been proved by any of the witnesses except DW-1, defendant herself. The witnesses have also deposed that at the time when the Will was executed, number of persons - 9 - were present there. However, the names of those persons have not been mentioned. 17. In the instant case, the land was inherited by Pasang Butti from her husband, Pema. She had become full owner of the land and after her death being issueless, the same has been inherited by the plaintiff being her husband. 18. DW-4, Bhola Dutt Prasher is Tehsildar (Recovery), Kullu. According to him, he had made endorsement at portion “Y” to “Y”. He read over and explained the Will to the testator and she appended her thumb impression. Since the testator, i.e. Pasang Butti did not understand Hindi language how the contents of Will Ex.DW-2/B could be explained to her. According to him, only the testator and witnesses were present though DW-1 has stated that plaintiff, Kasang was also present at the time of registration of the Will. DW-2 has not deposed whether Pasang Butti has put her thumb impression on the Will in the presence of marginal witnesses or not. DW-8 has deposed that the meeting has taken place in home where the witnesses were called to attest the Will. However, DW-3 has deposed during cross-examination that Shamsher Singh, DW-8 was incidentally present in Tehsil Office on the date of execution of the Will. DW-3 has also stated in cross-examination that he was incidentally present in Tehsil Office at the time of execution of the Will. According to Chhavinder Thakur (DW-2), after execution of the Will, the same was handed over to Atma - 10 - Ram, DW-3. However, Shamsher Singh, DW-8 has deposed that after execution of the Will, the same was handed over to Pasang Butti. Neither DW-3 nor DW-8 has supported the version of defendant that plaintiff, Kasang had actively participated at the time of execution of the Will. 19. Their Lordships of the Hon’ble Supreme Court in Babu Singh and others versus Ram Sahai alias Ram Singh, (2008) 14 SCC 754 have held that when genuineness of a will is in question, apart from execution and attestation of will, it is also the duty of a person seeking declaration about the validity of the will to dispel the surrounding suspicious circumstances existing, if any. Their Lordships have further held that in terms of section 68 of the Evidence Act, although it is not necessary to call more than one attesting witness to prove due execution of a will but that would not mean that an attested document shall be proved by the evidence of one attesting witness only and two or more attesting witnesses need not be examined at all. Their Lordships have further held that section 68 envisages the necessity of more evidence than mere attestation, as the words “at least” have been used therein. Their Lordships have further held that the will is to be attested by two witnesses in terms of section 63 (1) (c) of the Succession Act, 1925. Their Lordships have further held that not only the execution of will be proved, but actual execution must also be attested by at least two witnesses and the attestation of will in - 11 - question must be in conformity with the provisions of section 3 of the Transfer of Property Act. Their Lordships have further held that ‘attestation’ and ‘execution’ connote two different meanings. Their Lordships have held as under: “12. Indisputably a Will is to be attested by two witnesses in terms of Section 68 of the Indian Evidence Act (Act). Indisputably, the requirement of Section 63(1)(c) of the Indian Succession Act is required for to be complied with for proving a writ. Section 68 of the Act mandates proof by attesting witnesses of not merely of execution but also attestation by two witnesses. That is to say, not only the execution of Will must be proved but actually execution must be attested by at least two witnesses. Attestation must of execution of Will be in conformity with the provisions of Section 3 of the Transfer of Property Act. 13. 'Attestation' and 'execution' connote two different meanings. Some documents do not require attestation. Some documents are required by law to be attested. 14. In terms of Section 68 of the Act, although it is not necessary to call more than one attesting witness to prove due execution of a Will but that would not mean that an attested document shall be proved by the evidence of one attesting witness only and two or more attesting witnesses need not be examined at all. Section 68 of the Act lays down the mode of proof. It envisages the necessity of more evidence than mere attestation as the words 'at least' have been used therein. When genuineness of a Will is in question, apart from execution and attestation of Will, it is also the duty of a person seeking declaration about the validity of the Will to dispel the surrounding - 12 - suspicious circumstances existing if any. Thus, in addition to proving the execution of the Will by examining the attesting witnesses, the propounder is also required to lead evidence to explain the surrounding suspicious circumstances, if any. Proof of execution of the Will would, inter alia, depend thereupon. 15. The Court, while granting probate of the will, must take into consideration all relevant factors. It must be found that the will was product of a free will. The testator must have full knowledge and understanding as regards the contents thereof. For the said purpose, the background facts may also be taken note of. Where, however, a plea of undue influence was taken, the onus wherefor would be on the objector and not on the offender. {See Savithri & Ors. v. Karthyayani Amma & Ors. [JT (2007) 12 SC 248]}” 20. Their Lordships of the Hon’ble Supreme Court in Lalitaben Jayantilal Popat versus Pragnaben Jamnadas kataria and others, (2008) 15 SCC 365 have held that section 63 (c) of Succession Act, 1925 provides that attestation of will by two or more witness is mandatory. Their Lordships have further held that the will has to be proved not only by proving the signature of the executor but it should be found to be free from any suspicious circumstances. Their Lordships have held as under: “11. The law in regard to proof of a valid Will is now well settled. It has to be proved not only by proving the signature of the executor but it should be found to be free from any suspicious circumstances. Section 63(c) of the Indian Succession Act reads as under: - 13 - "Section 63.--Execution of unprivileged Wills -- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1 [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules :- (a) and (b) ... (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." 12. Indisputably, the said provision is mandatory in nature. A Will is required to be attested by two or more witnesses. Section 68 of the Evidence Act provides that the propounder must prove execution and attestation of the Will by examining at least one of the attesting witnesses. What is meant by the word `attestation' is defined in Section 3 of the Transfer of Property Act which reads as under : Section 3.--Interpretation-clause--In this Act, unless there is something repugnant in the subject or context,- XXX XXX XXX "attested", in relation to an instrument, means and shall be deemed always to have meant - 14 - attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary. 20. Whether a Will is surrounded by suspicious circumstances or not is essentially a question of fact. We have noticed hereinbefore that there was a large number of suspicious circumstances in the instant case. We have also pointed out that suspicious circumstances appear on the face of the Will. Inferences of suspicious circumstances must be drawn having regard to the evidence of Ranjit Singh. Even the statutory requirements for proof of the Will have not been complied with. It is a trite law that execution of a Will must be held to have been proved not only when the statutory requirements for proving the Will are satisfied but the Will is also found to be ordinarily free from suspicious circumstances. When such evidences are brought on record, the Court may take aid of the presumptive evidences also." 21. Their Lordships of the Hon’ble Supreme Court in K. Laxmanan versus Thekkayil Padmini and others, (2009) 1 SCC 354 have reiterated that onus to prove the will lies on the - 15 - propounder. Their Lordships have further held that even where plea of suspicious circumstances is not raised but circumstances give rise to doubt, the propounder must satisfy the conscience of the court by removing such doubt. Their Lordships have held as under: “18. It is only as against the judgment and findings that the items of property covered by Ext. B2 and B3 are available for division that the second appeal was preferred by the fifth defendant in the High Court of Kerala. Therefore, the properties covered by Ext. B1 and B4 namely items 1 to 3, 13 and 14 are no longer in dispute and the conclusions arrived at by the first appellate court that the said items are not available for division are final and binding on the parties. 19.What is in dispute and is open to further litigation are only the properties covered by Ext. B2 and B3 which were held by both the appellate courts to be available for division. Since we are concerned with the legality of execution of Deed of Will and Deed of Gift, Section 68 of the Act would have some relevance, which reads as follows:- "68. Proof of execution of document required by law to be attested. - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), - 16 - unless its execution by the person by whom it purports to have been executed is specifically denied." Strong reliance was placed on this provision also by the learned counsel appearing for the parties. A bare reading of the aforesaid provision will make it crystal clear that so far as a Deed of Will is concerned, the position in law is no longer in doubt for the onus of proving the Will is on the propounder. The propounder has to prove the legality of the execution and genuineness of the said Will by proving absence of suspicious circumstances surrounding the said Will and also by proving the testamentary capacity and the signature of the testator. Once the same is proved, it could be said that the propounder has discharged the onus. 19. When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair