IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Regular Second Appeal No. 394 of 1998. Reserved on 3.12.2008. Decided on: 22.12.2008. __________________________________________________ Dayal Singh and another. … Appellants. Versus Bhinder Kaur @ Harbinder Kaur … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellants : Mr. K.D. Sood & Mr. Ramakant Sharma, Advocates. For Respondent : Mr. Arvind Sharma, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree passed by the learned District Judge, Solan in Civil Appeal No. 34-N/13 of 1997 decided on 19.8.1998. Brief facts necessary for adjudication of this regular second appeal are that the plaintiff-respondent (hereinafter referred to as the plaintiff for convenience sake) had filed a suit for claiming herself to be daughter of Shri Swaroop, who died intestate on 16.8.1991 and being his only class-1 heir, she had become owner in possession of the suit property by way of succession. The 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 appellants (hereinafter referred to as the defendants) contested the suit. They have averred that Shri Swaroop executed a legal and valid will dated 4.8.1973 in their favour which was registered before the Sub Registrar, Nalagarh on 1.9.1973. The trial Court dismissed the suit on 14.8.1997. The plaintiffs preferred an appeal before the learned District Judge, solan. The learned District Judge, Solan allowed the appeal on 19.8.1998. This regular second appeal has been filed against the judgment and decree dated 19.8.1998 of learned District Judge, Solan. This regular second appeal was admitted on 28.12.1998. However, it appears that inadvertently the attention of the Hon’ble Single Judge was not drawn to the substantial questions of law filed along with memorandum of appeal. The Court on 10.11.2008 directed that the appeal would be deemed to have been admitted on the following substantial questions of law: 1. Whether on a proper construction of the Will Ex. DW- 4/A, it was established that testator Saroop had executed the same on his own free will and volition and execution thereof was established? 2. Whether the report of finger print expert Ex.PW-6/A being not supported by reasons or date with respect to the opinion formed was sufficient to cast a cloud on the execution and validity of the Will? 3. Whether the plaintiff is entitled to the relief of declaration and possession of the suit land in view of alternative case/status of defendants as tenants of the same without determination of such dispute by the Land Reforms Officer as per Chuhniya Devi Vs. Jindu Ram 1991 (1), Simla Law Cases 223 decided 3 by this Hon’ble High Court and further lapse of time for more than 30 years on account of non redemption of land measuring 2-6 bighas out of the suit land? Mr. K.D. Sood has strenuously argued that judgment and decree passed by the learned District Judge, Solan is not sustainable. He has vehemently argued that the findings recorded by the learned First Appellate Court that the Will Ex. DW-4/A is null and void are contrary to law. Mr. Arvind Sharma, learned counsel appearing on behalf of the plaintiff has supported the judgment and decree passed by the learned District Judge, Solan. I have heard the parties and perused the record carefully. Since substantial questions of law are inter-linked and connected, the same have been taken up for hearing together. A very short question involved in this regular second appeal is whether the Will Ex.DW-4/A dated 4.8.1973 is valid or not. The learned trial Court had come to the conclusion that the Will was valid and has been executed in accordance with law. The Will in question has been scribed by Shri Husan Chand, Petition Writer. Shri Dayal, Numbardar is the attesting witness. DW-4 Shri Husan Chand has deposed that he has scribed the Will at the instance of Shri Swaroop. He read over the contents of the same in presence of the witnesses, who after admitting the contents, signed the same and witnesses appended their thumb impressions. DW-5 Shri Dayal attesting witness has deposed that the Will was executed by Shri Swaroop from the Petition Writer. He after admitting the 4 contents of the Will read over to him and appended their signatures at the instance of Shri Swaroop. He was 70 years of age. Shri Husan Chand DW-4 has deposed that the testator after admitting the correctness of the contents appended his signatures and the witnesses appended their thumb impressions. However, DW-5 Shri Dayal has deposed that testator appended the thumb impression and they put their signatures. According to DW-5 Shri Dayal, the age of the testator was 70 years, however, in the Will the age of the testator has been recorded as 40 years. The Will was registered on 1.9.1973. The presence of defendants was recorded in the endorsement by the Sub Registrar. DW-5 Shri Dayal has deposed that defendants Mohinder Singh and Dayal Singh were not present in the office of the Registrar. According to DW-5, the Will was presented at 10.0 a.m. and registration was completed within half an hour. However, it is evident from the back of the Will Ex. DW-4/A that it was presented on 1.9.1973 for registration between 4.00-5.00 p.m. Initially, name of Shri Ram Saran Dass, Numbardar was mentioned as identifier of the testator by Sub Registrar, however, his name was struck off and in his place name of Shri Dayal was substituted. PW-6 Dr. Ravinder Singh, who examined the disputed and admitted thumb impression of Shri Swaroop, submitted his opinion vide Ex. PW-6/A. Thumb impression mark Q-1 on the Will Ex. DW-4/A was found to be different from thumb impression marked A-1, A-2 reply and A-4 on Vakalatnama and did not tally with thumb impression marked A-1, A-2 and A-4. DW-4 could not produce the register on the pretext that he lost it. 5 In view of the above discussion, it is evident that the Will made in favour of defendants by Shri Swaroop dated 4.8.1973 was not valid and the same is surrounded by suspicious circumstances. The findings recorded by the First Appellate Court are in accordance with law. The defendants had not proved how and in what manner they were inducted tenants by Shri Ram Swaroop after execution of the Will. Since Will Ex. DW-4/A dated 4.8.1973 is doubtful being surrounded with suspicious circumstances, there was need for the learned Courts below to invoke the judgment of Chuhniya Devi Vs. Jindu Ram 1991 (1), Simla Law Cases 223. In view of the observations made hereinabove, there is no force in this regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), J. December 22, 2008. (cr)