IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 277 of 1998. Reserved on: 7.4.2009. Decided on: 21 .4.2009. __________________________________________________ Shri Sucha Singh and another. … Appellants. Versus Shri Labh Singh and another. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellants : Mr. G.D. Verma, Sr, Advocate with Mr. Romesh Verma, Adv. For the Respondents : Mr. O.P. Sharma, Sr.Advocate with Mr. K.R. Kashyap, Adv. ___________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Solan in Civil Appeal No. 88-NL/13 of 1996 dated 23.4.1998. Brief facts necessary for adjudication of this regular second appeal are that appellants-plaintiffs (hereinafter referred to as the plaintiffs for convenience sake) had filed a suit in the Court of Sub Judge Ist Class, Nalagarh for declaration and, in the alternative, for joint possession with consequential relief of permanent injunction against the respondents-defendants (hereinafter referred to as the defendants for convenience sake). 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 The plaintiffs had claimed that the suit land was owned and possessed by one Smt. Raghunath Dei, widow of Jagir Singh who had executed a registered Will on 11.6.1987. She died on 25.5.1991 and thereafter, they are coming in possession of the suit land by virtue of Will Ext. PW-1/A. The defendants in connivance with Revenue staff got mutation of the suit land attested in their favour on 20.6.1991. The suit was contested by the defendants. They have denied execution of the Will by Smt. Raghunath Dei. The trial Court decreed the suit on 20.8.1996. The defendants preferred an appeal before the learned District Judge, Solan. The learned District Judge, Solan allowed the appeal and judgment and decree passed by the learned trial Court was set aside. This regular second appeal is directed against the judgment and decree dated 23.4.1998 passed by the learned District Judge, Solan. This regular second appeal was admitted on the following substantial questions of law: 1. Whether the appellants have established on record the due execution and registration of Will Ext. PW-1/A on behalf of late Smt. Raghu Nath Dei in their favour? 2. Whether the well reasoned judgment and decree passed by the Ld. Sub Judge, Nalagarh has been up set by the Ld. District Judge without recording reasons? 3. Whether the findings recorded by the Ld. District Judge are vitiated due to mis-reading and mis-appreciation of the pleadings of the parties and oral and documentary evidence on record? 3 4. That the defence set up by the respondents lacks material particulars and the same could not be entertained in the absence of particulars of alleged mis-representation, undue influence etc. 5. Whether the Will Ext. PW-1/A has been executed and registered and the same is valid in accordance with the provisions of Indian Succession Act, Indian Evidence Act and Indian Registration Act? 6. Whether the admissions, as made by the respondents in the written statement and evidence, have been wrongly ignored? 7. Whether by failure to cross-examine the PWs in consonance with the defence set up by them the respondents have admitted the claim of the appellants? Mr. G. D. Verma, Senior Advocate has strenuously argued that the judgment and decree passed by the learned District Judge is not sustainable. He has supported the judgment and decree passed by the learned trial Court. Mr. O.P. Sharma, Senior Advocate has supported the judgment and decree passed by the learned First Appellate Court. I have heard the learned counsel for the parties and perused the record carefully. The substantial questions of law are being taken up together for adjudication to avoid repetition and for convenience. Ext. PW-1/A is the Will in question executed on 11.6.1987. It was registered by the Sub Registrar, Nalagarh on 4 11.6.1987. It has been scribed by Ram Parkash Sharma (PW-2). It was attested by PW-1 Shri Ram Sharan Dass. Mr. G.D. Verma has vehemently argued that the Will dated 11.6.1987 has been executed in accordance with law. It is borne out from the record that initially the Will Ext. PW-1/A was typed by Shri Ram Parkash Sharma, Petition Writer in the presence of witnesses, namely; Hukam Chand and Bachan Singh. Thumb impression of Bachan Singh was obtained on the Will. Later on, the names of Hukam Chand and Bachan Singh were deleted from the Will. The names of Ram Saran Dass and Kali Dass were inserted. PW-2 Ram Parkash Sharma, who has scribed the Will, deposed that the Will was scribed at the instruction of Smt. Raghunath Dei in presence of Hukam Chand and Bachan Singh. Thereafter, Hukam chand and Bachan Singh left. Thereafter, Smt. Raghunath Dei was asked to bring other witnesses. She brought Ram Saran Dass and Kali Dass. PW-2 has further deposed that he scribed the Will in presence of Ram Saran Dass and Kali Dass and the contents were read over and explained to the testator in presence of the witnesses. The testator has also admitted about the correctness of the Will. He did not know Smt. Raghunath Dei personally. He also admitted the thumb impression of Bachan Singh. Kali Dass was not produced by the plaintiffs. Ram Sharan Dass (PW-1) is the attesting witness. He has admitted that he had no relation with Smt. Raghunath Dei. He appended his signatures on the Will at the behest of Shri Ram Chand, Shopkeeper. Smt. Raghunath Dei was staying at Nalagarh with Ram Chand. Neither the attesting witness Ram 5 Saran Dass nor the scribe Ram Parkash Sharma were known to Smt. Raghunath Dei. PW-1 has deposed that before his arrival, Smt. Raghunath Dei had already appended her signatures and the Will contained stamp of Petition Writer, Ram Parkash. It is not proved on record that Smt. Raghunath Dei appended her signatures on the Will in presence of witnesses. The Will was registered before the Sub Registrar. The Sub Registrar has only put one question to Smt. Raghunath Dei. Thereafter, the parties were referred to a Clerk sitting in a different room. The contents of the Will were not read over by the Sub Registrar nor in his presence the testator appended her signatures. The registration of the Will will not provide any authenticity to it if the same is surrounded with suspicion. Shri Ram Chand, grand father of the plaintiffs had taken leading part in execution of the Will. PW-1 has attested the Will at the instance of Shri Ram Chand. The propounder of the Will has failed to prove the due execution of the Will in question i.e. Ext. PW1/A. The learned First Appellate Court has correctly appreciated the ocular and documentary evidence. In a recent judgment, their Lordships of the Hon’ble Supreme Court in Yumnam Ongbi Tampha Ibemma Devi Vs. Yumnam Joykumar Singh & others, 2009 (3) Scale-571 have held that attestation of Will is not an empty formality. The attesting witness should put his signatures on the Will animo attestandi. Its execution has to be proved in the manner laid down in Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. Their Lordships of the Hon’ble Supreme Court have held as under: 6 “As per provisions of Section 63 of the Succession Act, for the due execution of a Will (1) the testator should sign or affix his mark to the Will; (2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a Will; (3) the Will should be attested by two or more witnesses, and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the Will in presence of the testator. The attestation of the Will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested witness should put his signatures o n the Will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a Will is required by law to be attested, execution has to be proved in the manner laid down in section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document. Therefore, having regard to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a Will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the Will. The attesting witness should speak not only about the testator’s signature or affixing his mark to the Will but also that each of the witnesses had signed the Will in the presence of the testator.” 7 Accordingly, there is no merit in this regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), J. April 21, 2009. (cr)