IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 234 of 2002 & FAO No. 223 of 2003. Judgments reserved on 1.9.2010. Decided on September 10, 2010. 1. RSA 234 of 2002. Mansa Ram (since deceased) through his LRs Surinder & others …Appellants. Versus Shankroo …Respondent. 2. FAO No. 223 of 2003. Mansa Ram (since deceased) through his LRs Surinder & others ….Appellants. Versus Shankroo & another ..Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellants : Sh. G.D.Verma, Sr. Advocate, with Sh. B.C. Verma, Advocate. For the Respondents: Mr. Vinay Kuthiala and Mrs. Vandana Kuthiala, Advocates. Surjit Singh, Judge. Two cases, particulars whereof are given hereinabove, are being disposed of by this common judgment, as common questions of law and facts, based Whether Reporters of the Local Papers may be allowed to see the judgment? - 2 - upon identical factual matrix, are involved. Controversy raised in both the cases pertains to a Will Ex.DW-2/A, allegedly executed by Jamna in favour of Mansa Ram (now deceased and represented by his LRs) Munshi Ram and Nek Ram (hereinafter called defendants). 2. Shankroo, respondent in both the appeals and her mother Sartaju, (now dead and represented by Shankroo, respondent) filed a suit for declaration that they were owners in possession of the property, described in the plaint (hereinafter referred to as the suit land) and that appellants- defendants, had no right, title or interest therein. By way of further relief, they prayed for issuance of permanent prohibitory injunction, restraining appellants-defendants from causing interference in their possession. It was alleged that Attru, father of plaintiff Shankroo and husband of Sartaju, owned the suit land and some other land. On the death of Attru in the year 1960, his estate was inherited by Shankroo, being his daughter and Sartaju, the deceased plaintiff and one Smt. Jamna. Sartaju and Jamna were the wives of Attru. Shankroo inherited half share, while Sartaju and Jamna together inherited half share equally. Jamna died in December, 1993 and on her death, plaintiff Shankroo and deceased Sartaju inherited the suit property, which she (Jamna) had inherited from her - 3 - husband Attru, being one of his two wives. They claimed that this way, they were owners of the suit land. They also claimed that on the death of Jamna, they came in possession of the suit land and the possession was continuing with them. It was stated that the defendants- appellants, without any right, title or interest, were threatening to dispossess them by use of force. Regular second appeal arises out of this suit. 3. Stand taken by the appellants-defendants in their written statement was that Jamna, after the death of Attru in the year 1960, had married their father’s brother Lachhu. It was stated that said Lachhu died in the year 1981. After Lachhu’s death, they had been rendering services to Jamna, being Lachhu’s nephews and pleased with their services, she executed a Will in their favour, in respect of her entire movable and immovable property on 21.10.1993. They claimed that Jamna had been living with them during her life time and on her death, they came in possession of the suit land and thus, possession was with them. They claimed title to the suit land on the basis of Will. 4. Parties went to trial, on the conclusion of which, trial Court held that the plaintiffs were out of possession, Jamna had executed a valid will in favour of appellants-defendants and that Jamna had married - 4 - Lachhu Ram, brother of father of the defendants, after the death of her first husband Attru. With these findings, suit was dismissed. 5. Appeal was filed by the plaintiffs in the Court of District Judge. Applications under Order 41 Rule 27 CPC for leading additional evidence were moved by both the sides during the pendency of the appeal. Those applications were allowed. Appellants, who were respondents in the appeal before the District Judge, examined one of them, namely Mansa Ram, who tendered in evidence copies of entries in revenue papers and stated that entries, showing respondents-plaintiffs in possession, were wrong. Plaintiffs-respondents, who were appellants before the District Judge examined the left out marginal witness of the Will, namely RW-1 Sohan Lal, who stated that Will had been executed by Jamna in his presence and that affidavit Ex.AW-1/A, in which it was declared that no Will had been executed in his presence and that his signatures on the Will was obtained later on at the residence of the scribe, had been furnished by him under pressure, exerted upon him by respondents- plaintiffs through a Baba, who was common guru of himself and plaintiffs-respondents. Learned District Judge accepted the appeal, holding that the Will was shrouded by suspicious circumstances. Suspicious - 5 - circumstances noticed by the first appellate Court in its judgment are: a) Contradictory affidavits sworn by one of the attesting witnesses of the Will, namely Sohan Lal, AW-1 with regard to the genuineness of the Will. b) Scribe of the Will DW-2, Kishan Lal’s mother was having litigation with Sartaju (deceased plaintiff). It was also held that Jamna had not contracted any marriage with Lachhu. Possession of the suit property was also held to be not with the defendants, but with the plaintiffs. On account of acceptance of appeal, suit of the respondents-plaintiffs was decreed and they were declared to be owners in possession of the suit land. A declaratory decree was accordingly passed. Decree of permanent prohibitory injunction, restraining the appellants-defendants from interfering with the possession of the respondents-plaintiffs over the suit land, was also passed. 6. Mansa Ram, Munshi Ram and Nek Ram, appellants in RSA, as also in FAO, filed a petition under Section 383 of the Indian Succession Act, 1925 for revocation of Succession Certificate which had been granted in favour of Shankroo and Sartaju, in respect of debts and securities of Jamna Devi, claiming that Jamna - 6 - Devi had executed a Will in their favour, in respect of her entire movable and immovable property, including money lying in deposit in her bank accounts. 7. Application for revocation of Succession Certificate granted in favour of the plaintiffs, was dismissed by the District Judge, in view of the finding that the Will set up by the appellants was shrouded by suspicious circumstances and respondents-plaintiffs were held to be legal heirs of deceased Jamna and hence entitled to inherit her entire property, including debts and securities. 8. RSA was admitted on the following substantial question of law: Whether the Will Ex.DW-2/A in favour of the appellants on behalf of Jamna has been proved on record and there were no legal grounds to find fault with its validity, as recorded by the learned Sub Judge below and the learned lower Appellate Court has unlawfully held the same to be invalid, there being no suspicious circumstances. 9. I heard the counsel for the parties attentively and have also gone through the record thoroughly. 10. Alleged suspicious circumstances shrouding the Will, as noticed by the learned First Appellate Court - 7 - and also additional circumstances, pointed out by counsel for the respondents during the course of hearing, are: (a) Contradictory affidavits sworn by one of the attesting witnesses of the Will, namely Sohan Lal, AW-1 with regard to the genuineness of the Will. (b) Scribe of the Will is an interested witness, as his mother was having litigation with Sartaju, one of the two legal heirs of the testatrix. (c) Will is written in fountain pen, but DW-3 Hari Singh, testified that it was written in ballpen. (d) Scribe, DW-2 Krishan Lal stated that ink of fountain pen was used for obtaining thumb impression of the testatrix on the Will, but DW-3 Hari Singh stated that there was an ink pad and that pad was used for thumb impressing the Will by the testatrix. (e) Scribe, DW-2 Krishan Lal stated that only one sheet of paper was made available to him by a girl in the house of the testatrix, but Hari Singh, DW-3 stated that there were so many paper sheets in a file cover. (f) Scribe, DW-2 Krishan Lal is just 5th standard pass, but the language of the Will suggests that it is the handy-work of a person, well versed in drafting. (g) Testatrix is not proved to have married Lachhu, brother of father of the beneficiaries under the Will and, therefore, there was no occasion for her to deprive the plaintiffs- respondents of inheriting the estate of the testatrix. - 8 - 11. The aforesaid circumstances are being dealt with hereinafter, one by one in the same seriatim, in which they have been mentioned hereinabove. 12. As regards circumstance (a), Will was executed in October, 1993. Testatrix died in December, 1993 and suit was filed in January, 1994. Trial Court decided the suit in July, 1999. An affidavit, Ex.AW-1/A was sworn by Sohan Lal, AW-1 on 22.9.2000, when the appeal was pending against the judgment of the trial Court with the District Judge. This affidavit was sworn in favour of the plaintiffs-respondents. Another affidavit, Ex. RA was sworn by Sohan Lal earlier on 10.1.2000. This affidavit was in favour of appellants-defendants. 13. In the affidavit Ex.AW-1/A, Sohan Lal declared that he was called by Mansa Ram, one of the appellants- defendants, to the house of scribe Krishan Lal, DW-2, two months after the death of Jamna Devi, where one blank paper, bearing thumb impression was produced by Mansa Ram, one of the appellants-defendants and on that blank paper, Will of Jamna Devi was written by Krishan Lal, DW-2 and he (Sohan Lal) was pressurized to sign that Will. In the affidavit dated 10.1.2000, Ex. RA it is declared that Jamna Devi had executed the Will on - 9 - 21.10.1993 and the Will had been got scribed by her from DW-2 Krishan Lal. 14. From a reading of affidavit Ex. RA (dated 10.1.2000), it appears that one more affidavit had been furnished by Sohan Lal, earlier to the swearing of affidavit dated 10.1.2000. It was admitted during the course of hearing that such earlier affidavit had been sworn by Sohan Lal on 20.12.1999, that is to say during the pendency of appeal before the District Judge, in which it was declared that the Will was not genuine and the witness (Sohan Lal) had been pressurized to attest it. Thereafter, affidavit Ex.RA was sworn on 10.1.2000, in which it was declared that the earlier affidavit (purportedly dated 20.12.1999) had been procured from him by the plaintiffs – respondents by putting pressure upon him. 15. While in the witness box as AW-1, Sohan Lal admitted that initially, affidavit had been obtained from him by the plaintiffs-respondents after they filed appeal before the District Judge. From the testimony of Sohan Lal, as also the conceded fact that first affidavit was sworn on 20.12.1999 in favour of the plaintiffs- respondents, it appears that after losing the case in the trial Court, plaintiffs-respondents tried to create evidence in their favour by procuring affidavit from Sohan Lal. - 10 - When appellants-defendants came to know that Sohan Lal had sworn an affidavit in favour of the respondents- plaintiffs declaring therein that Jamna Devi had not executed any Will, they procured affidavit Ex.RA, in which it was declared that the Will was genuine and that the earlier affidavit sworn by him in favour of the plaintiffs- respondents was the result of pressure exerted upon him by the plaintiffs. That means, game of trapping Sohan Lal and procuring affidavits from him was started by plaintiffs-respondents and, therefore, they cannot derive any benefit from the contradictory declarations made in the affidavits, in support of their plea that the Will is not genuine. This is particularly so when Sohan Lal, in the witness box as AW-1 before the District Judge, categorically stated that the Will had been executed by Jamna Devi in his presence and that she got it scribed from DW-2 Krishan Lal and thereafter she put her thumb impression and he and the other witness DW-3 Hari Singh attested the Will. The witness was available for cross examination to both the sides. Plaintiffs-respondents could not elicit from him anything indicating that the Will was not genuine. It has been noticed hereinabove that the witness was available to both sides for cross examination, because from a bare reading of the statement made by the witness in the Court, it is clear - 11 - that leading questions were put to him even by the respondents-plaintiffs, who produced him as their witness. 16. In any case, the mere fact that Sohan Lal made contradictory declarations in his affidavits, cannot be said to be a suspicious circumstance, shrouding the execution of the Will. The witness, having made contradictory declarations, is not trustworthy and, therefore, his evidence is required to be excluded from consideration. Affidavit, which he swore in favour of respondents-plaintiffs, that is Ex.AW-1/A, was testified by him to have been furnished under pressure, exerted upon him by the plaintiffs-respondents, through a Baba, who was common guru of the plaintiffs and the witness. 17. Circumstance (b) can also not be said to be suspicious. The mere fact that mother of the scribe was having some litigation with Sartaju, a co-widow of testatrix, by itself, does not lead to an inference that the Will is fabricated, especially when it has come in evidence that Jamna was not having good relations with Sartaju and her daughter Shankroo, plaintiff. Jamna got her share in the property separated from Sartaju and Shankroo. She had not been living with them. She was being looked after and maintained by appellants- defendants. The fact is borne out from the statement of - 12 - a witness of the plaintiffs themselves, that is Dila Ram, PW-2, who stated that obsequies of Jamna were performed by the defendants, though he did add that Nanak Chand (husband of Shankroo) also joined the defendants in performing the obsequies. The witness also admitted that Jamna used to reside in the house of Lachhu, as his wife. Now, when Jamna on one side and Sartaju and Shankroo, plaintiffs on the other, were not having good relations and Sartaju and Shankroo did not even perform Jamna’s obsequies, it can legitimately be presumed that Jamna intended to disinherit Sartaju and Shankroo, plaintiffs and, therefore, she executed the Will in favour of the appellants-defendants, who are nephews of Lachhu, with whom she (Jamna) settled as wife, after the death of her husband Attru, as admitted by respondents-plaintiffs’ own witness PW-2 Dila Ram. 18. Coming to circumstances (c) and (d), Will was executed on 21.10.1993. Hari Singh appeared as DW-3 in the witness box on 25.9.1997, or say four years later. He was 65 years old when he appeared as a witness. Therefore, he was not supposed to be recollecting, whether fountain pen or a ballpen was used to scribe the Will and whether ink from the pen was used for thumb impressing the Will by the testatrix or there was an ink pad. - 13 - 19. Will is written in fountain pen and thumb impression of the testatrix also appears in the ink of the same fountain pen by which the Will is written. The facts are in consonance with the testimony of the scribe of the Will, namely DW-2 Krishan Lal. So these circumstances can also not be taken to be suspicious circumstances, negating the due execution of the Will, testified by DW-2 Krishan Lal and DW-3 Hari Singh. 20. For the reasons stated while dealing with circumstances (c) and (d), circumstance (e) can also not be treated as suspicious circumstance. 21. With regard to circumstance (f), learned counsel for the respondents-plaintiffs submitted that words like “Mankula” and “Sanad”, used in the Will Ex.DW-2/A, are technical words and a person, who has studied only upto 5th standard, is not supposed to be knowing such words and the facts suggest that the Will was written on the dictation of some person, having expertise in writing documents. Villagers normally understand the term “Mankula”, which is used for “movable property” and also “Sanad”, which term is used for “certificate”. But for these two words, all other words used in the Will are very simple and plain. There are spelling mistakes even in respect of very ordinary words. For example, word “lava” is written in place of word - 14 - “ilava”, which means “except” or “other than”. So, this circumstance can also not be taken to be a suspicious one. 22. Regarding circumstance (g), suffice it to say that a witness of the respondents-plaintiffs themselves, namely Dila Ram PW-2, who used to act as Numberdar on behalf of Sartaju, the deceased plaintiff, testified that Jamna, after the death of her husband Attru, started living with Lachhu in his house as his wife and that her obsequies were also performed by Lachhu’s nephews, that is the appellants –defendants. Also, it has come in evidence that Lachhu was a pensioner and on his death, Jamna had been getting family pension in the capacity of Lachhu’s wife. The fact is proved by DW-5 K.R.Gupta, Accounts Officer from the office of Senior Deputy Accountant General, Himachal Pradesh, Shimla, who testified that according to the record maintained by Senior Deputy Account General, family pension, after the death of Lachhu, was being disbursed to Jamna, who as per record, was his wife. 23. In view of the above stated position, it is held that learned first appellate Court was not justified in setting aside the decree of the trial Court and reversing its finding that the Will set up by the appellants- defendants was genuine. Substantial question of law is - 15 - answered accordingly. Consequently, appeal is accepted, judgment and decree of the learned first appellate Court are set aside and those of the learned trial Court, dismissing the suit of the plaintiffs-respondents, restored. 24. In view of the finding that the Will set up by the appellants-defendants is genuine, FAO is also accepted, impugned order of the Additional District Judge, dismissing application under Section 383 of the Indian Succession Act, as filed by the appellants – defendants, is set aside, the said application is allowed and the Succession Certificate dated 10.1.1997, granted in favour of the plaintiffs-respondents, vide order dated 10.1.1997, is revoked. September 10, 2010 (PC). (Surjit Singh), J.