HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.: 310 of 1997. Reserved on: 30.6.2008. Decided on: 21.7.2008 Chet Ram ………Appellant. Versus Radha Lal ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.K.D. Sood & Mr.Balwant Singh, Advocates. For the respondent: Mr.Bhupender Gupta, Senior Advocate, with Mr.Janesh Gupta, Advocate. V.K. Ahuja, J.: This is a regular second appeal filed by the appellant against the judgment and decree of the court of learned Additional District Judge, Kullu, dated 8.8.1997, vide which he reversed the judgment and decree of the learned Senior Sub Judge, Lahaul & Spiti at Kullu, dated 15.3.1997, dismissing the suit of the respondent. Briefly stated the facts of the case are that the original plaintiff Mohanu Devi, now represented by her legal representative, filed a suit for declaration and permanent injunction as against the appellant, who was impleaded as defendant. ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - It was alleged that the land and house, as detailed in the plaint, were owned and Possessed by Smt.Bantu @ Kalabantu, who was owner in possession of the landed and house property. It was alleged that Smt.Bantu was young and she died suddenly in an accident on 7.11.1989. The said Bantu was married to Hira Nand, who was not having any child and had divorced Smt.Bantu during her life time. Thus, Smt.Bantu died issueless leaving behind plaintiff being her sister as her sole legal representative. It was alleged that the plaintiff and deceased Bantu were the daughters of Moti Ram and Bantu has been succeeded by plaintiff as her sole heir and mutation to this effect was also attested in favour of the plaintiff. It was further alleged that to grab the property of the deceased, the defendant set up a Will, dated 17.9.1989, which was a forged and fictitious Will. Defendant filed an appeal before the Collector against the mutation order on the basis of the Will, but the said appeal was dismissed by the Collector. The defendant filed revision before the Divisional Commissioner, Mandi, who, by exercising his powers, referred the case to the Financial Commissioner for acceptance of the appeal. It was alleged that by taking undue advantage of the opinion of the Divisional Commissioner, the defendant has started interfering in the possession of the plaintiff over the suit land, hence the suit filed by the plaintiff. The defendant pleaded that the plaintiff was not the legal heir of the said Bantu Devi, nor she was owner in possession of the suit property and it was also denied that the plaintiff was the sole legal heir of the deceased Bantu Devi. The defendant also pleaded that Bantu was old woman of 55 years and was not keeping good health and for most of the time, she remained confined to bed. It - 3 - was also denied that the plaintiff was the real sister of the deceased, but it was pleaded that she was the step-sister of the deceased. It was admitted that the mutation was wrongly attested in favour of the plaintiff. The defendant placed reliance upon the Will, dated 17.9.1989, executed by the deceased in his favour. It was also pleaded that the defendant had been rendering services to the deceased and accordingly the Will was executed by the deceased in his favour and he is in physical possession of the suit land. On the pleadings of the parties, issues were framed by the learned trial Court, who held that the plaintiff has failed to prove that she was the heir of deceased Bantu and it was held that the deceased had executed a valid Will in favour of the defendant and, therefore, the suit was dismissed. On appeal, the learned First Appellate Court reversed the findings of the learned trial Court holding that the plaintiff was the legal heir of the deceased and that the defendant had failed to prove that any valid Will was executed in his favour by the deceased and accordingly decreed the suit of the plaintiff for declaration and injunction. I have heard the learned counsel for the parties and have gone through the record of the case. The appeal was admitted by this Court on substantial questions of law framed at page 5 of the paper book. A perusal of the appeal shows that first substantial question of law was that whether the execution of the Will was duly proved and defendant was entitled to inherit the property of Bantu Devi. Second substantial question of law was that whether the learned First Appellate Court was right in reversing the judgment and decree of the learned Trial Court and - 4 - had misconstrued the basic document of title Ext.D-1. The another substantial question of law was as to whether the suspicious circumstances have not been removed by the defendant and the learned courts below have misconstrued the oral as well as documentary evidence and had drawn wrong inference from the facts proved on record. The submissions made by the learned counsel for the appellant were that the Will in question had been legally proved from the statement of the scribe and marginal witness and there are no material contradictions in the statements of these witnesses and the learned First Appellate Court had wrongly held that the Will was not legally proved. No signatures of the deceased were sent for comparison but the learned First Appellate Court itself compared the signatures and came to the conclusion that these did not appear to be that of executant, which findings are incorrect. Thus, it was submitted that the suit was rightly dismissed by the learned trial Court and those findings are liable to be restored. On the other hand, the learned counsel for the respondent has supported the judgment passed by the learned First Appellate Court for the reasons recorded therein. In view of the fact that the question pertains to interpretation of the Will, its due execution, suspicious circumstances surrounding the Will and that both the courts have given different findings in regard to the validity of the Will, there has to be reappraisal of evidence by this Court so as to hold as to whether the Will stood proved legally or not. - 5 - Coming to the findings, the Will in question has been sought to be proved from the statement of DW-2 Kamal Dass, marginal witness, and DW-3 Teja Singh, Scribe of the Will. There are various reasons to hold that the validity of the Will in question cannot be said to have been proved legally so as to hold that it was a valid Will executed by the deceased in favour of the defendant. These various reasons may be recorded as under. The defendant has nowhere pleaded his relationship with the deceased and as to why she will execute the Will in his favour except that he had been rendering services to her. In his statement, he simply stated that the Will was written in his favour since he was looking after the deceased. He, however, stated that the deceased was of the age of 55 years. Coming to the illness or the disease with which the deceased was suffering, DW-1 Chet Ram defendant has stated that she was suffering from stomach ache and he used to bring medicines for her every week from Banjar Hospital. He further stated that prior to her death, she remained ill for two months. DW-2 Kamal Dass, the marginal witness to Will Ext.D-1, has nowhere stated that the deceased used to remain ill or that she remained on bed for two months prior to her death. He stated that she died because of pain in her stomach. He stated that she died in the second or third year of execution of the Will Ext.D-1. This is contrary to the facts since the Will, as per the allegations made, was executed on 17.9.1989 and the deceased had died on 7.11.1989, within about 2 months of its execution. He further stated that she used to remain ill some times. - 6 - DW-3 Teja Singh, the Scribe, has stated that the Will was executed by the deceased. He is not aware as to when the deceased died since he stated that he is resident of another place, namely, Outer Seraj. In regard to his presence at the spot, he has stated that he was working in the temple and he had been called from the temple out of 70-80 persons present there. He stated that the deceased had come to call him and Chet Ram was not accompanying her and at her instance, he alongwith his father and Dule Ram went themselves to her house and had not accompanied her when she had called them at 9.00 a.m. and left the place. Thereafter, they all went around 12.00 noon. He stated that Bantu had brought the paper from a shop after they reached there and the paper on which the Will Ext.D-1 was written was a plain paper. There was no occasion for the deceased to execute the Will when she was allegedly of the age of 55 years and there is no specific evidence on record to prove that she used to remain ill and, therefore, had felt the necessity to execute the Will. The only evidence to prove her illness is the statement DW-1 Chet Ram, but he has not produced any OPD slip from the hospital at Banjar where he used to go every week and get her treatment. The learned trial Court had discussed the question that the plaintiff has failed to prove that the deceased died in an accident since he did not produce any evidence in that regard, but that was not material if the deceased died in an accident or died a natural death. In fact, if she had died a death in the accident, it could have been another reason for her not to execute the Will since she could not visualize that she would die. Moreover, there is nothing in the Will Ext.D-1 that she alleged therein that she used to remain ill and, therefore, there was necessity for - 7 - her to execute the Will. The solitary statement of the defendant himself in this regard was not sufficient to prove that the deceased used to remain ill and, therefore, felt the necessity to execute the Will. Apart from the above, DW-3 Teja Singh, who is the Scribe of the Will, is the son of DW-2 Kamal Dass, a marginal witness to the Will. There is nothing on record to show that the Scribe or the witnesses were known to the deceased and, therefore, she reposed faith in them and called them from the temple where they were present. Moreover, it is also on record that the deceased had executed a gift deed earlier of her property, Ext.PW-6/A, which shows that she had knowledge that such documents are to be executed by going to the office of the Sub Registrar and the learned First Appellate Court has discussed the evidence that the office of the Sub Registrar was only at some distance and there is nothing on the record to show that the deceased was so ill that she felt the necessity to execute the Will two months prior to her death and was unable to go to the office of the Sub Registrar. DW-3 Teja Singh, the Scribe, has admitted that he was not the deed writer, had no experience of writing the Will and there is no justification for him to write the Will when the deceased could have easily gone to Tehsil Office and got the Will executed from the deed writer or got the same registered in the office of Sub Registrar. The learned Appellate Court had referred to the contradictions wherein DW-2 Kamal Dass has stated that the Will was written in the room while DW-3 Teja Singh has stated that it was written in the courtyard of the house of the deceased. DW-3 Teja Singh, the Scribe, has admitted that sufficient space has been left after writing the - 8 - name of Kamal Dass and the name of another witness Dile Ram and addresses have been written tightly. Moreover, the deceased had signed the gift deed Ext.PW-6/A as Bantu, which was a registered document executed by her and on the Will her signatures are there as Kalabantu. There is nothing to show that Bantu was also known as Kalabantu since there is no specific evidence on record in this regard. The learned trial Court had compared the signatures itself with that of the deceased on the gift deed, though the plaintiff should have taken steps to get the signatures compared with the admitted signatures of the deceased on the gift deed, which was not done. However, the court has the power also to compare the signatures, which power was exercised by the learned First Appellate Court and had concluded that these do not appear to be of one and same person. This observation can be taken as additional ground to hold that the Will appears to be suspicious and not as only ground to hold that the Will was not legally proved or was surrounded by suspicious circumstances. Keeping in view the discussion made by the learned First Appellate Court in regard to the infirmities in the statement of the witnesses of the defendant and the fact that the Will was written on a plain paper not by any deed writer and the witnesses and the Scribe were not known to the deceased since there is no evidence to this effect and there was no occasion for her to execute the Will at the age of 55 years. There is no evidence also to show that the deceased required the services or she was being served by the defendant before her death. - 9 - In view of above discussion, it follows that the findings recorded by the learned First Appellate Court can be said to be correct, which were given after due discussion of evidence and those findings do not call for an interference by this Court and as such there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The parties are left to bear their own costs. July 21, 2008. (V.K. Ahuja), (TILAK) Judge.