IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.353 of 2005. Judgment reserved on 21.9.2011. Date of Decision: 14th November, 2011. _______________________________________________________ Shri Jagdish Chand and others ..Appellants. Versus Smt. Shakuntla Devi and others ..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellants: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. For the respondents: Mrs. Jyotsna Rewal Dua, Advocate. ____________________________________________________ SURINDER SINGH, J. The present Regular Second Appeal is under Section 100 of the Code of Civil Procedure filed by the plaintiffs, having felt aggrieved by the judgment and decree passed by the learned Additional District Judge in Civil Appeal No.31-N/13 of 2003 dated 30.4.2005, allowing the appeal of the defendants whereby the judgment and decree passed by the learned trial Court were set aside, resulting in dismissal of the suit. 2. This Second Appeal was admitted by this Court on the following substantial question of law: “1) Whether the first appellate Court has not appreciated the evidence correctly while reversing the finding of the trial Court that the Will set up by the respondents-defendants is not genuine?” Whether reporters of the Local papers are allowed to see the judgment? - 2 - 3. The following pedigree-table of the parties, which will be of some benefit to have the better and quick understanding of the facts:- Hira Singh Jeet Ram Mangoo Ram Chet Ram Krishan ( dead) Shakuntla (Defendant No.1- widow) Jagdish (Plaintiff No.1) Bachni (Plaintiff No.2) Kalo (Plaintiff No.3) Hari Chand (dead) Tejveer (Defendant No.2- Son) Meena (Defendant No.6- Daughter) Naresh (Defendant No.4- Son) Sunita (Defendant No.5- Daughter) Pooja (Defendant No.3- Daughter) Neelam (Plaintiff No.7- Daughter) Chaman Lal (Plaintiff No.4- Son) Kashmiro (Plaintiff No.6- Daughter) Ajay Kumar (Plaintiff No.5- Son) - 3 - 4. Now, the brief facts of the case giving rise to the present appeal can be stated thus. Late Shri Chet Ram had three sons and two daughters, namely Jagdish Chand, Hari Chand, Krishan Chand, Smt. Bachni Devi and Kalo Devi; ii) Chet Ram was owner in possession of the suit land. He died on 15.5.2002 at the age of around 87 years, leaving behind the plaintiffs and the defendants. 5. The plaintiffs alleged that when they were busy in performing the last rites of deceased Chet Ram, defendant/respondent No.1 Smt. Shakuntla got entered on 23.5.2002 the alleged Will in favour of her children in the relevant register from the ‘Halqua Patwari’. Thus, the appellants, hereinafter called as ‘the plaintiffs’ filed a suit seeking declaration that they are joint owners and in possession of the suit land and had succeeded to the estate of Chet Ram alongwith the respondents, now called ‘the defendants’ and sought the decree of declaration that the Will aforesaid was illegal and void document and mutation No.196 dated 25.5.2002 was also wrong and - 4 - illegal. The said Will is not a genuine document. It is alleged that Chet Ram was a drunkard and was keeping bad company and he was a simpleton person, he never executed the alleged Will. It was their case that the suit land was purchased by Mangoo Ram from joint Hindu Family funds, as such it was joint Hindu family property. In alternative, a decree for joint possession was also claimed. 6. The defendants offered a strong resistance to the suit. At the time of filing the suit defendants No.2 to 6 were minors, as such their interests were being watched by their mother Smt. Shakuntla Devi, defendant No.1. During the pendency of the suit, defendant Naresh Kumar attained majority and denied that the suit land was joint Hindu family property. It was not purchased by late Shri Mangoo out of joint Hindu family funds in the name of Chet Ram. Since it was purchased by Chet Ram as aforesaid so it was rightly bequeathed by way of genuine Will in favour of the defendants during the life time. It is averred that Chet Ram was not simpleton person nor of a weak talent. The allegations of his being a drunkard and keeping bad company are specifically denied. It is denied that Chet Ram was residing with Ajay Kumar plaintiff. The Will dated - 5 - 25.8.2000 by Chet Ram was claimed to have been executed in accordance with law in the presence of marginal witnesses, namely Jiwan Singh and Darshan Singh. Thus, prayed for the dismissal of the suit. 7. On the pleadings of the parties, the learned trial Court framed the following issues: 1) Whether deceased Mangoo purchased the suit land in the name of Chet Ram from the joint Hindu family funds, if so, its effect? OPP. 2) Whether the suit land was purchased by Chet Ram from his funds, if so, its effect? OPP. 3) Whether defendant No.1 exercised undue influence on late Shri Chet Ram and got executed the Will dated 25.8.2000, if so its effect? OPP. 4) Whether deceased Chet Ram executed valid Will in sound disposing mind on 25.8.2000, if so its effect? OPD. 5) Whether plaintiffs are entitled to the relief of declaration? OPP. 6) Whether plaintiffs are entitled to the relief of injunction? OPP. 7) Relief. 8. After the complete trial, the learned trial Court answered issues No.2, 5 and 6 in affirmative and others in negative, as such decreed the suit filed by the plaintiffs against which the defendants filed appeal before the learned Additional District Judge. On re-appreciation of the facts and law, the learned Additional District Judge reversed the findings of the - 6 - learned trial Court and held that the Will Ext.DW1/A was a genuine document executed by Chet Ram in accordance with law, consequently, the appeal was allowed and now the plaintiffs are in the present Regular Second Appeal. 9. Shri G.D. Verma, learned Senior Advocate duly assisted by Shri B.C. Verma, Advocate, forcefully argued that the first appellate Court did not appreciate the evidence with respect to the Will in the right perspective. He submitted that the Will in question is shrouded by the suspicious circumstances and that one of the marginal witnesses, namely Jiwan Singh is the father of defendant Shakuntla Devi and the other marginal witness Darshan Singh is closely related to Jiwan Singh aforesaid. Further defendant Shakuntla Devi also took active part in execution of the Will as borne out from the record. The testimony of the interested marginal witness cannot be blindly acted upon. It is also argued that defendant Shakuntla Devi in her statement testified her presence on the spot, whereas Darshan Singh, marginal witness stated that she was not present, only her father DW3 Jiwan Singh was present. The said fact was also corroborated by Jiwan Singh aforesaid. He further ventilated that said Shri Chet Ram was in extreme old- - 7 - age. He was liquor-addict and indulged in the bad company. The defendants never served him. Hari Chand son of Chet Ram died in the year 1996. Thus, he could not be expected to live with Chet Ram. Even the names of legal representatives of Hari Chand are not found mentioned in the said document, therefore, the contents of the Will are far from truth. He also argued that the Will in question makes a reference that he had already given the land out of his ownership to Hari Chand, Jagdish, but at the same time it is mentioned that he did not want to give anything to them makes the document doubtful. He also pointed out that the suspicious circumstances as noted by the learned trial Court were wrongly ignored by the learned first appellate Court without any cogent reasons and the Will is proved to be a document full of contradictions and suspicion. 10. Ms. Jyotsna Rewal Dua, learned Counsel for the defendants submitted that the Will stands proved in accordance with law. The suspicious circumstances as pointed out by the learned trial Court are worth ignoring and were rightly discarded by the learned Additional District Judge by giving cogent reasons. She further submitted that said Sh. Chet Ram had - 8 - confided into the close relatives for execution of the Will. The circumstances so put-forth to disbelieve the Will have been properly explained by its propounder and further that the testamentary capacity and the signature of testator as required by law stand proved and the propounder had discharged its onus. To buttress her arguments, she put reliance on the judgment of the Apex Court in Meenakshiammal (dead) through LRs v. Chandra Sekaran and another, (2005) 1 SCC 280, S.R. Srinivasa and others v. S. Padmavathamma, (2010) 5 SCC 274 and Gun Parkash and another v. Bhola Nath, AIR 1997 HP 27. 11. I have given my thoughtful consideration to the rival contentions of the parties and have gone through the record carefully. 12. The entire fate of the controversy in this appeal hinges upon the genuineness of the Will. Basically, the Court is to respect and ensure the last Will of the testator who had made the same in a sound disposing mind and while determining this question the Court will not bring its own views as to what is or is not a moral or fair disposition. Once the factum of the Will having validly and properly executed is established, it is no part of the duty of the Court to see whether it is natural or causes any - 9 - hardship or deprives the near relations of the testator and in all such cases, the Court has to give effect to such wish of the testator as detailed in the Will and further to ascertain such a wish of the testator, the Court is not in a position to enquire from the deceased-testator regarding the genuineness of the Will, except for looking to the evidence produced by the parties, there is no other way for the Court to examine the genuineness and due execution of a Will under law and as held by the Coordinate Bench of this Court in Gun Parkash’s case [AIR 1997 HP 27]. 13. Section 63 of the Indian Succession Act provides for the execution and attestation of the Will, which reads as under: “63. Execution of unprivileged Wills.-Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or a mariner at seas, shall execute his Will according to the following rules: (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has seen the - 10 - testator sign or affix his mark to the Will or has been 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 persons, 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.” 14. Thus, the execution of the Will is required to be established in accordance with the provisions aforesaid, whereas Section 68 of the Evidence Act requires that at least one of the attesting witness should be examined to prove the due execution of the Will by satisfactory evidence to the effect that the attesting witness saw the testator signing or thumb- marking the Will or obtained an acknowledgement of the signatures of such other person from the testator and the witnesses themselves signed Will in the presence of the testator. Even this requirement can be dispensed with if the document in question has been executed in one sitting in the presence of the witnesses in absence of any other glaring suspicious circumstance(s) regarding the Will. - 11 - 15. In Meenakshiammal’s case [(2005) 1 SCC 280] the Apex Court held that when a question arises as to whether a Will is genuine or forged, normally the fact that nothing can be said against the reasonable nature of its provisions will be a strong and material element in favour of the probabilities of the Will. 16. It is well settled that the onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and proof of the signature of the testator, as required by law, is sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus is on the propounder to explain all legitimate suspicions to the satisfaction of the Court before it accepts the Will as genuine. If the propounder takes a prominent part in the execution of the Will, which confers a substantial benefit on him, the propounder is also required to remove the doubt by clear and satisfactory evidence. 17. In nutshell, once the propounder proves that the Will was (i) signed by the testator, and (ii) that he was at the relevant time in a sound disposing state of mind, and (iii) that he understood the nature and effect of the disposition and put his signature out of his - 12 - own free will, and (iv) he signed it in the presence of the witnesses who attested it in his presence, the onus, which rests on the propounder, is discharged. 18. In fact, the suspicion alleged must be one inherent in the transaction itself and not the doubt that may arise from conflict of testimony which becomes apparent on an investigation of the transaction. Suspicious circumstances cannot even be defined precisely. They cannot be enumerated exhaustively. They must depend upon the facts of each case. The suspicious circumstances may be regarding the genuineness of the signature of the testator, the condition of the testator’s mind, the disposition made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator’s mind was not free. 19. Further, whether a Will has been executed by the testator in a sound and disposing state of mind is purely a question of fact, which will have to be decided in each case on the circumstances disclosed, and the nature and quality of the evidence adduced. 20. It is equally settled that when the Will is alleged to have been executed under undue - 13 - influence, the onus of proving undue influence is upon the person making such allegation and mere presence of motive and opportunity are not at all enough. 21. In S.R. Srinivasa’s case [(2010)5 SCC 274], the Supreme Court has also reiterated same legal principle with respect to the mode and manner of proof and legal provisions governing the Will. Therefore, there is consistency till date as far as the above legal principles are concerned. 22. In the present case, the Will Ext.DW1/A was executed on 25.8.2000 by Shri Chet Ram. It is thumb- marked by him in the presence of Jiwan Singh and Darshan Singh. On the same day, it was presented before the Sub Registrar by Chet Ram where he was identified by Shri Hari Singh, Nambardar. There is an endorsement on the Will to the effect that the contents thereof were read over and explained to the testator to which he admitted to be correct. 23. Precisely, under Section 60 (2) of the Indian Registration Act, the certificate given by the registering officer is admissible in evidence for the purpose of proving that the document has been duly registered in the manner provided by the Act and - 14 - that the facts mentioned in the endorsement referred to in Section 59 have occurred as stated therein. 24. Further DW2 Shri Rakesh Gupta, deed-writer, is a scribe of the Will. He testified that he had typed the said document, as per the instructions of Chet Ram, as stated by him and after the document was complete it was read over and explained to him in the presence of the witnesses. Thereafter he appended his thumb-impression in the presence of the marginal witnesses aforesaid. They also appended their signatures. He also made an entry in his register against Sr. No.116. He further stated that he did not know any of the parties, but specifically denied that the Will in question was got typed at the instance of Shakuntla defendant. He also denied that Chet Ram was not in a free disposing mind. 25. DW3 Jiwan Singh, father of defendant Shakuntla Devi is a marginal witness. He testified that the Will in question was scribed by DW2 Rakesh Gupta at Paonta Sahib at the instance of Chet Ram. It was read over and explained to the testator in his presence and also in the presence of Darshan Singh. At that time, Chet Ram was in free state of disposing mind. He further stated that both he and Darshan Singh had signed the Will in the presence of Chet - 15 - Ram. Thereafter the said document was presented for registration by Chet Ram before the Tehsildar where he was identified by Shri Hari Singh, Nambardar. In cross-examination he stated that Chet Ram defrayed the expenses of execution of the Will. He denied that he in connivance with Shakuntla Devi, defendant and DW2 Rakesh Gupta, deed writer, fabricated the Will. He also denied that Chet Ram did not put his thumb- mark before the Tehsildar and that his mental condition was not good. 26. DW4 Darshan Singh stated that he was brought to the Tehsil office by Chet Ram, testator. Chet Ram got scribed the Will from the deed-writer Shri Rakesh Gupta (DW2). It was read over and explained to him by the scribe. After admitting its correctness, he appended his thumb-impression and thereafter both; he and Jiwan Singh put their signatures and thereafter the Will was presented before the Tehsildar by Chet Ram. He also stated that Hari Singh, Nambardar had identified him at the time of registration before the Sub-Registrar and that Smt. Shakuntla Devi was not with them. He further stated that Chet Ram defrayed the expenses of the Will. Even DW5 Hari Singh, Nambardar has corroborated the above version with respect to the writing of the - 16 - Will and identification of the testator by him before the Sub-Registrar. Though in cross-examination he admitted the presence of Shakuntla Devi as he was brought by Shakuntla Devi to identify the testator to whom he already knew. Even Shakuntla Devi stated that when the Will was executed, she was present. But categorically denied that she got scribed the Will and manipulated the witnesses. 27. The learned trial Court on the strength of the aforesaid evidence found the Will surrounded by suspicious circumstances on the grounds that DW2 Rakesh Gupta, deed writer had made a general statement that the Will was executed in the presence of witnesses, who had also appended their signatures, but he nowhere stated that Chet Ram had appended his thumb-impression in the presence of marginal witnesses Jiwan Singh and Darshan Singh. Secondly that scribe did not say that he personally knew Chet Ram, but in cross-examination stated that he did not know anybody. Thirdly, Hari Singh, Nambardar did not identify the testator before scribe Rakesh Gupta. Therefore, the learned trial Court entertained doubt about the genuineness of the said document, which in my considered opinion, on the strength of the above evidence are not enough to - 17 - disbelieve the genuineness of the Will for the reasons that the case of the plaintiffs is not that at the time of scribing the Will there was some other person present who was introduced as Chet Ram and at the time of registration of the Will a different man than the testator was produced, who was identified by the Nambardar. If we closely look into the testimony of DW5 Hari Singh, he categorically stated that he knew Chet Ram personally and on the date of execution of the Will he was present and Chet Ram got scribed the Will from DW2 Rakesh Gupta, deed-writer in the presence of Darshan Singh and Jiwan Singh, marginal witnesses and he got him identified before the Tehsildar. He also noticed the entire sequence from the execution of the Will till its attestation leave no room to doubt his testimony and in cross-examination nothing of the kind which raises a suspicion could be extracted from him. 28. The second circumstance noted by the learned trial Court is also without any merit. The scribe also categorically testified that he scribed the Will at the instance of Chet Ram and it was read over and explained to him, who after admitting the contents thereof put his thumb-impression in the presence of the marginal witnesses. Though he stated that he did - 18 - not know any of the parties personally, but the fact remains that all the persons including the attesting witnesses and the identifier had categorically stated that it was Chet Ram who got scribed the Will and made its payment to the scribe. Further the presence or absence of Shakuntla on the day of execution of Will is of no consequence. 29. The principle of law as stated supra if applied in the present fact situation shows that the suspicious circumstances noted above are not even worth taking cognizance to hold against the Will. Importantly, there is also no rebuttal to the evidence of the defendants that the deceased was not in a free disposing state of mind at the time of execution of the Will. 30. Thus for the aforesaid reasons, the Will in question is proved to be a genuine document and the defendants have been able to establish its due execution in accordance with law. As such, the impugned judgment and decree passed by the first appellate Court need no interference, as it is based upon the proper appreciation of evidence. The substantial question of law is accordingly answered. The appeal sans merit and is accordingly dismissed. - 19 - 31. Parties to bear their own costs. November 14, 2011. (Surinder Singh), (rc) Judge.