IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.361 of 1996 Judgement reserved on: 18.12.2007 Date of decision: 25.2.2008. Naresh Kumar and others ………Appellants Vs. Shakuntla Devi & others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants : Mr. N.K. Thakur, Advocate, For the Respondents : Mr. H.K. Bhardwaj, Advocate. For respondents No.1,3 to 6. Kuldip Singh, Judge. Naresh Kumar and Subash Chand plaintiffs No.2 and 3 respectively have filed this appeal against the judgment, decree dated 27.9.1996 passed by learned District Judge, Una in Civil appeal No.18 of 1991, confirming judgment, decree dated 31.1.1991 passed by learned Sub Judge Ist Class, Court No.2 Una in Civil Suit No.108/1984. RBT-34/89. 2. The facts in brief are that appellants and respondent No.8 filed a suit for declaration and permanent injunction against Gurcharan Singh, now represented by respondents No. 1 to 7, regarding land Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 measuring 276 kanals 5 marlas. The appellants case is that suit land was owned by Smt. Basanti Devi ( also known as Basant Devi) widow of Suba Singh, she owned other land also in different villages. She executed a will on 13.2.1979 bequeathing different parcels of land to different heirs who were her husband’s collaterals. The suit land situated in village Panjawar under the will was given to appellants and respondent No.8 in lieu of services rendered by them to her. She died in 1980, the appellants and respondent No.8 are heirs of testatrix on the basis of will regarding suit land and they are in possession of the suit land after the death of testatrix. The mutation No.4028 was entered but after long enquiry mutation was sanctioned wrongly in favour of original defendant Gurcharan Singh on 1.12.1984, hence suit. 3. The suit was contested but it was not denied that the testatrix was owner of the suit land in village Panjawar and other villages. The execution of will by testatrix in favour of appellants and Joginder Singh was denied. It has been alleged that will, if any, in favour of appellant and Joginder Singh is the result of fraud, misrepresentation. It has been alleged that original defendant Gurcharan Singh being the son of Hukmi Devi, pre-deceased daughter of Suba Singh husband of deceased testatrix, is the legal heir qua the estate of testatrix and as such Gurcharan Singh is entitled to succeed to the estate of testatrix and therefore, mutation was rightly attested in favour of Gurcharan Singh. Only following two issues were framed by the trial Court. 3 1. Whether Smt. Basanti Devi executed a valid will dated 13.2.1979 in favour of the plaintiffs as alleged, if so its effect? OPP 2. Relief. The learned trial Court decided issue No.1 against the appellants as well as respondent No.8 and dismissed the suit on 31.1.1991. This was assailed by way of appeal before learned District Judge, Una who dismissed the appeal on 27.9.1996, hence this appeal. 4. The appeal has been admitted on following substantial questions of law:- 1. Whether the defendants/respondents are estopped by their act and conduct in assailing the one mutation out of three sanctioned mutations on the basis of the Will? 2. What is the effect of non-challenging/assailing the mutations sanctioned on the basis of the same Will, the genuineness of which is disputed for the land of one village only? 3. Whether in the instant case the due execution of the Will has been proved validly, as required under Section 63 of the Indian Succession Act? 4. What is the effect of non-considering the document Ex.P- 3, the mutation sanctioned on the basis of the Will which has ever been challenged by the respondents? 5. Whether the impugned judgments are the result of misappreciation and misconstruction of the oral as well as documentary evidence and as such have vitiated? 6. Whether the company of the father of the plaintiffs with the executant to the deed writer is a suspicious circumstance so as to construe active participation to the propounder of the Will? 4 7. Whether the non-registration of the Will is a suspicious circumstance so as to brush aside the genuineness of the execution of the Will? 5. I have heard Mr. N.K. Thakur, learned counsel for the appellants and Mr. H.K. Bhardwaj, learned counsel for the respondents and gone through the record. It has been submitted on behalf of the appellants that execution of will Ex.P-2 dated 13.2.1979 of testatrix has been proved in accordance with Section 63 of the Indian Succession Act. The two Courts below have misappreciated and misconstrued the evidence on record. It has been wrongly held that the will is shrouded by suspicious circumstances. The registration of the will is not necessary. The predecessor of respondents had not challenged the other mutations sanctioned on the basis of the will. The will has been questioned only with respect to suit land. The learned counsel for the respondents has supported he impugned judgment, decree. Substantial questions of law:- 6. The substantial questions of law No.1 to 7 are basically with respect to the execution of the will dated 13.2.1979 by testatrix in favour of appellants and respondent No.8, therefore substantial questions of law No.1 to 7 are being disposed of collectively. 7. The execution of the will is to be in accordance with Section 63 of the Indian Succession Act. In the present case the question is whether execution of will dated 13.2.1979 has been proved as per the requirement of law. It is settled law that execution of the will 5 is to be proved by the propounder of the will and suspicious circumstances, if any, connected with the will are to be explained, removed by the propounder of the will. In H. Venkatachala Iyengar versus B.N. Thimmajamma and others, AIR 1959 Supreme Court 443 in para-19 it has been held:- “However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be 6 taken to be discharged on proof of the essential facts just indicated.” 8. PW-1 Malkiyat Singh is the Special Attorney of appellant No.2 and has stated that in the year 1979 Basant Devi had shown her intention to execute a will of her property. On 12.2.1979 Basant Devi asked him for execution of the will. They assembled at Mukerian at 10 a.m. Ram Kishan, Janak Singh were also there. Petition Writer Satish scribed the will of Basant Devi. In cross-examination he has stated that will was executed on 12.2.1979. The will was written at 11.30 a.m.. All of them went to the petition writer together. He returned to his home at 12 noon. He denied that will was prepared after the death of Basant Devi in connivance with Ram Kishan. PW-2 Ram Kishan has stated that in February 1979 Basant Devi has executed a will. The will was scribed by petition writer. In cross- examination he has stated that will was scribed at 11.30 a.m. After executing of the will they appeared before the Tehsildar who also enquired from them. In cross-examination he has stated that he did not put his signature as attesting witness. The will Ex.P-2 was not shown to him during his examination in the Court nor he identified signatures of testatrix or any attesting witness on the will. 9. PW-3 Satish Kumar has stated that he scribed will Ex.P-2 on 13.2.1979 on the asking of Basant Devi. The will was attested by Janak Singh and Ram Kishan witnesses. The will was read over to textratrix which she admitted to be a correct. In cross-examination he has stated that testatrix came to him at 10-11 a.m. He admitted that he was summoned by Tehsildar in connection with this will. He was 7 confronted with his statement Ex.D-1 and admitted the same to be correct. PW-4 Janak Singh has stated that will Ex.P-2 was scribed by Satish Kumar on the direction of Basant Devi, which was read over to her and she admitted the same to be correct and then they put their signatures. He signed the will as attesting witness . Ram Kishan witness also signed the will. Malkiyat Singh and Ram Singh were also present on the spot. In cross-examination he has stated that he reached about 10.30 a.m. in the Tehsil along with Ram Kishan. 10. PW-1 has stated that will was executed by testatrix at about 11-30 a.m. and he returned to his home about 12 noon. In other words the execution of the will was completed in all respect by 12 noon. PW-1 has given the date of execution of will 12.2.1979 in his examination-in-chief as well as in cross-examination, but the other witnesses have stated that will was executed on 13.2.1979 . There is thus variation in the date of execution of the will, which is a suspicious circumstance and has not been explained. 11. Ex.D-1 is the statement of Satish Kumar scribe of the will before Tehsildar in connection with will. In Ex.D-1 Satish Kumar has stated that the will of Basant Devi was scribed on 13.2.1979 at about 3 p.m. and only Basant Devi came to him and none else, after execution of the will Basanti Devi brought witness Ram Kishan and thereafter Basant Devi asked Ram Kishan to bring Janak Singh. Malkiyat Singh etc. were not there. Statement Ex.D-1 was recorded on 10.5.1984. The statement of PW-3 Satish Kumar in the Court was recorded on 25.11.1987 and then on 10.10.1988. In his earlier statement Ex. D-1 before Tehsildar with respect to the same will he has stated that the 8 will was written at 3 p.m. and only Basant Devi came to him for scribing the will. The witness Ram Kishan was called by her later on and thereafter she asked Ram Kishan to call Janak Singh. The statement Ex.D-1 completely demolishes the case of appellants regarding the execution of will Ex.P-2 by Basanti Devi in their favour. PW-2 Ram Kishan has stated that after scribing the will they appeared before the Tehsildar who also enquired from them but it is a fact that the will is not a registered will. This further create suspicion. PW-4 Janak Singh has also not proved the execution of will in accordance with Section 63 of the Indian Succession Act. PW-2 Ram Kishan alleged attesting witness has categorically stated in cross-examination that he did not put his signature as witness on the will. A Hindu will is required to be attested by two witnesses. 12. The execution of the will Ex.P-2 by Basanti Devi in favour of appellants and respondent No.8 has not been proved. In these circumstances, there is no question of estoppel against the respondents or their predecessor for assailing the will. The propounder of the will is required to prove the execution of the will and in the present case will Ex.P-2 of Basanti Devi has not been proved. There is no issue of estoppel, Ex.P-3 mutation No.554 is of no help to the appellants as they have failed to prove the execution of will Ex.P-2. Even if mere presence of the father of the beneficiaries at the time of alleged execution of will and non-registration of the will are not taken as suspicious circumstances, the fact remains that the propounders of the will have failed to prove the execution of the will. The two Courts below have rightly appreciated the material on record regarding the 9 non execution of the Will Ext.P-2 which is question of fact. No case for interference has been made out. The questions of law No.1 to 7 are decided against the appellants. 13. The result of the above discussion, appeal fails and is dismissed with costs. ( Kuldip Singh ) Judge February 25, 2008 (sks)