IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 368 of 1996 Reserved on:4.6.2008 Date of decision:30.6.2008 Bhago and another Appellants. Versus Ram Kumar and another Respondents. Coram The Hon’ble Mr. Justice V.K. Ahuja, J. Whether approved for reporting1? Yes. For the appellant: Mr. Bhupender Gupta, Sr. Advocate with Ms Charu Gupta, Advocate. For the respondents: Mr.Dushyant Dadhwal, Advocate. V.K.Ahuja, J. This is an appeal filed by the appellants against the judgment and decree dated 18.11.1996 passed by the learned District Judge, Solan and Sirmaur Districts at Nahan setting aside the judgment and decree of the learned Sub Judge Ist Class, Paonta Sahib dated 29.5.1995 vide which the suit for declaration and possession filed by the appellants was decreed. Briefly stated, the facts of the case are that the appellants as plaintiffs, filed a suit for declaration and possession as against the respondent-defendants. It was alleged by the plaintiffs that the plaintiffs being the daughter of late Garibu, are his legal heirs and are entitled to inherit the estate of the deceased comprised in Khasra No.88 measuring 15.7 bighas. The plaintiffs also sought a declaration that the Will dated 2.6.1988 allegedly executed by the deceased in favour of the defendants, was not a valid Will and as Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 such the plaintiffs are entitled to the relief claimed by them. The defendants took up the plea that the plaintiffs were looking after their father and the relations in between the plaintiffs and the deceased was strained and it was denied that the last rites were performed by his daughters. It was further pleaded by the defendants that the deceased Garibu bequeathed his property in favour of the defendants by executing a valid Will since the father as well as the grand father of defendants used to serve Garibu and out of love and affection the Will was executed in favour of the defendants. The learned trial Court framed issues and the main issue framed was to whether a valid Will was executed in favour of defendants or not. Both the parties led evidence and the learned trial Court vide its impugned judgment held that the Will was surrounded by suspicious circumstances and, as such, the suit for declaration and injunction was decreed in favour of the plaintiffs. Those findings were reversed by the learned first appellate Court on appeal and the suit of the plaintiff-appellants was accordingly dismissed. I have heard learned counsel for the parties and have gone through the record. The substantial question of law on which the appeal was admitted by this Court is as to whether the disinheritance of daughters, who are the natural heirs, can be held to be a suspicious circumstance affecting the genuineness and validity of a Will. The next question propounded was as to whether the active taking of part by the propounder can be said to be a suspicious circumstance affecting the genuineness of a Will and the last question framed was as to whether the Will in question could be held to be valid in view of the fact that the recital in the Will was 3 incorrect regarding the rendering of services and in view of the contradictions in the statements of the attesting witnesses. During the course of arguments, the learned counsel for the appellants had submitted that the plaintiffs who are the daughters of the deceased while defendants are grand children of brother of deceased. It was submitted that when the Will was executed on 2.6.1988 the defendants were minors and there was no question of their rendering services to the deceased. It was submitted that the only one of the attesting witnesses was examined and the father of the beneficiary namely Amru, was present at the time of the execution of the Will had rather taken active part. It was also submitted that the Pradhan of the Panchayat or member of the Panchayat or any other respectable person was not associated at the time of execution of the Will. It was further submitted that one Siri Ram who was called, was related to the deceased. It was also submitted that there is contradiction in the evidence which shows that the thumb marks etc. were taken in the presence of the Tehsildar but these were taken in a separate room as per the evidence. It was also submitted that the deceased had been living with his one daughter or the other and there was active participation by one Jagdish, which clearly shows that the Will was surrounded by suspicious circumstances which have not been satisfactorily explained. On the other hand, learned counsel for the respondents had supported the impugned Judgment of the learned first Appellate Court for the reasons given therein. It was also submitted that the deceased was living in the same Village where the land was situated. It was also submitted that as per the custom in the area, father does not live with the daughters after marriage and the evidence led by the plaintiffs that the deceased was living with the plaintiffs is not trust worthy, and as such, the findings recorded by 4 the learned first appellate Court are based upon the correct appreciation of evidence of law and, as such, the appeal is liable to be dismissed. To support his arguments, the learned counsel for the appellant has also relied upon the two decisions. The decision in B.Venkatamuni vs. C.J.Ayodhya Ram Singh and others (2006) 13 Supreme Court Cases 449 shows that the Court must satisfy its conscience having regard to the totality of the circumstances of a particular case. It was also held that mere proof of execution in terms of Section 63 of the Succession Act and Sections 67 and 68 of Evidence Act are not sufficient. The decision in H.Venkatachala Iyengar v. B.N. Thimmajamma and others AIR 1959 SC 443 was relied upon by the appellant, which is the basic authority of the Apex Court and it lays down as to how the Will should be proved, how the evidence should be appreciated and what is the duty of the Court. In the light of the above submissions and the case law cited, the evidence of the parties has to be appreciated and it is to be considered as to whether there reasoning given by the learned first Appellate Court in reversing the findings can be said to be correct or not on the basis of the evidence led and the suspicious circumstances, as pointed out by the learned first Appellate Court. The learned trial Court in coming to its findings had observed that DW-2 Jagdish Chand witness has played an active part in regard to the execution of the Will and another circumstances taken by the learned trial Court in disbelieving the Will was that the defendants were minors and, as such, they could not be said to be looking after the deceased. It was also observed that the deceased had been on visiting terms with his daughters and had great love for him and, therefore, it was also held to be a suspicious circumstance, 5 and all the circumstances taken together were held to be sufficient to hold that the will was not genuine. A perusal of the judgment of the learned first appellate Court shows that he had enumerated seven circumstances which were allegedly suspicious circumstances and the learned first Appellate Court has given detailed reasoning in regard to each of the seven circumstances. The first circumstance mentioned was in regard to the presence of the father of the defendants at the time of execution of Will and it was concluded by the learned first Appellate Court on the basis of the discussion of the evidence that the evidence does not prove the presence of father of defendants at that time and he may have stated the facts in regard to the timings etc. as imagined by him. The mere fact that the signatures of DW-2 Jagdish Chand were not there on the Will was held to be not a suspicious circumstance even though his presence was established on the basis of the evidence. The presence of said Jagdish was also found on the endorsement of the Sub Registrar and he was not a beneficiary and no vital role was played by him except that he was present at the time of the execution of the Will before the Sub Registrar since the deceased was known to him. Another suspicious circumstance was that DW-3 Siri Ram, the attesting witness who stated that he had gone to the office of the Sub Registrar since he was asked by Garibu and the mere fact that he was related to the defendants in one way or the other, is not sufficient to hold that he could not have been associated as an attesting witness. The Will is normally written in the presence of one of the persons known to the executants and it is only at times that unknown persons are associated if they are holding some office of the Panchayat and are other respectable persons of the locality. The mere fact of joining DW-3 Siri Ram related to the 6 defendants distantly, cannot be said to be a suspicious circumstance which has been clearly discussed by the learned first Appellate Court. The father of minor defendants DW-1 Amru has clearly stated that he had been rendering services to the defendants who was living with them in their Village and it was also held by the learned first appellate Court on the basis of the evidence that the deceased was living separately with the minors as well as the father of minor defendants and was possessing sound health and, therefore, there was no question of seeking services from the defendants or their father. The deceased had no strained relations with the daughters i.e. plaintiffs, as per the evidence, but since they were married long back 30 to 40 years and the learned first Appellate Court had given sound reason that the nephews are preferred than the daughters in giving the property, who had been married and living happily in their respective homes. The reasoning given is sound coupled with the arguments of the learned counsel for the respondents that normally a person does not stay in the house of the married daughters as was sought to be proved from the testimony of the plaintiffs. Both the plaintiffs, did not appear in the witness box but PW-1 Sant Ram husband of Bhago plaintiff appeared in the witness box as the attorney of both the plaintiffs, and admitted that the deceased had not signed any Will but the defendants are grand sons of the deceased. He admitted that the last rites were performed by defendant family who spent for the expenses also. He stated that Garibu was living with his daughter Bhago i.e. his wife and he was looking after the land himself. His statement rather shows that the deceased was fit to look after his agricultural land and there is nothing to show that he was being served by the plaintiffs. To rebut the evidence of the plaintiff DW-1 Amru, the 7 father of the defendants has stated that the deceased was living with them and they were looking after his land. He has admitted that the deceased used to visit his daughters and used to stay for sometime with the daughters but he was possessing good health and was cultivating the land himself. The said identifier Jagdish was examined as DW-2 and it is not necessary that the identifier only should be joined as an attesting witness and his statement made in this Court cannot be accepted. From the above detailed discussion, it is clear that all the seven points were considered by the learned first appellate Court in detail who had concluded that there were no suspicious circumstances surrounding the Will. The mere fact that the daughters were disinherited who were already married and were living happily with their family, cannot be said to be a ground that the Will was not valid one or that it was a suspicious circumstance. The Court is not required to consider the morality of the Will and it has only to consider the question as to whether the Will in question was validly executed and that the suspicious circumstances have been removed by the propounder of the Will or not. The Court is not to inject its own theory that the daughters cannot be disinherited for no valid reasons but keeping in view the over-all circumstances, the question to be considered is the due execution of the Will which was executed more than four years prior to the death of the deceased which was duly registered one, and one of the attesting witnesses had also proved the Will in question namely DW-3 Siri Ram apart from DW-4 A.K.Sareen on whose dictation the Will was written and there is no infirmity so as to hold that their statements do not inspire confidence. On a perusal of the judgment of the learned first appellate Court and the reasons given therein, I am of the opinion that the reasoning given by the learned first Appellate Court in holding that 8 the Will was genuine and there is no reason to interfere with the said findings recorded by the learned first Appellate Court and as such, there is no merit in the appeal filed by the appellants which is dismissed accordingly. The parties are left to bear their own costs. 30th June, 2008. (V.K.Ahuja),J. (sds)