IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Regular Second Appeal No. 66 of 1996. Reserved on: 25.8.2008. Decided on: 22.9.2008. __________________________________________________________ Mansa Devi and others. … Appellants. Versus Keso Ram … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the appellants : Mr. Ajay Sharma, Advocate. For the respondent : Mr. Rajnish Maniktala, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 20.12.1995 passed by the learned Additional District Judge (2), Kangra at Dharamshala in Civil Appeal No. 103/K/XIII/94. The brief facts necessary for the adjudication of this regular second appeal are that the appellants/plaintiffs, hereinafter referred to as the plaintiffs, have filed a suit for possession. As per the contents of the plaint, Shri Gulaba, son of Shri Saudagar, was initially owner of the suit land, who was the real brother of plaintiffs’ father-Shri Birbal. Shri Gulaba inherited the suit land along with other land from his father. Plaintiffs No. 1 to 4 are the sons of Shri Birbal. Plaintiffs No. 5 & 6 are the daughters of Shri Birbal. Shri Gulaba died issueless leaving behind Smt. Mehando as his widow. He had executed a Will of his property in favour of Smt. Mehando on 7.9.1967. The plaintiffs were the sole legal heirs of Shri 1 Whether reporters of the local papers may be allowed to see the judgment? 2 Gulaba after the death of Smt. Mehando on 9.2.1982. The respondent/defendant, hereinafter referred to as the defendant, was entered owner in possession of the suit land on the basis of the Will dated 13.8.1981 executed in his favour by Smt. Mehando. The defendant resisted and contested the suit filed by the plaintiffs. The learned trial Court decreed the suit on 19.1.1994. The defendant feeling dis-satisfied with the judgment and decree dated 19.1.1994 preferred an appeal before the learned Additional District Judge, Kangra at Dharamshala. The learned Additional District Judge (2) Kangra at Dharamshala allowed the appeal on 20.12.1995. This regular second appeal has been preferred by the plaintiffs against the judgment and decree dated 20.12.1995. The regular second appeal was admitted on the following substantial questions of law: 1. Whether the learned first appellate Court below erred in appreciating the provision of law applicable, pleadings of the parties and evidence adduced by them in the case in hand, thereby vitiating the impugned judgment and decree? 2. Whether document Ext. PW5/A has wrongly been appreciated by the learned first appellate Court below? 3. Whether Smt. Mehando could will away the property, especially in view of Ext. PW5/A? 4. Whether defendant can be stated to be a owner of the property in the absence of alleged will of Smt. Mehando and Tamleeknama? 5. Whether the impugned judgment of the learned first appellate Court has been vitiated for want of appreciation of the facts and circumstances in its true and correct perspective? 3 Mr. Ajay Sharma, Advocate has strenuously argued that the judgment and decree dated 20.12.1995 is not sustainable and has prayed for restoration of the judgment and decree dated 19.1.1994 passed by the learned Sub Judge Ist Class, Dharamshala. Mr. Rajnish Maniktala, Advocate has supported the judgment and decree dated 20.12.1995 passed by the learned Additional District Judge (2), Kangra at Dharamshala. I have heard the parties and have perused the record carefully. Since the substantial questions of law are inter-connected, to avoid repetition of discussion of evidence, they were taken up together for hearing. The case set out by the plaintiffs in nutshell is that after the death of Smt. Mehando on 9.2.1982, they were entitled to possession of the suit property being sole legal representatives of Shri Gulaba. The case set out by the defendant is that he had become owner of the suit property on the basis of the Will executed by Smt. Mehando in his favour on 13.8.1981. He has defended the attestation of mutation in his favour on the basis of registered Will and Tamleeknama executed in his favour by Smt. Mehando. The concurrent findings recorded by both the learned Courts below are that Smt. Mehando was an absolute owner of the property. The learned trial Court has held that since the defendant had failed to produce and prove the Will dated 13.8.1981, he could not be treated legal heir of Smt. Mehando. I have gone through the pleadings of the parties to ascertain whether the genuineness of the Will dated 13.8.1981 was ever assailed before the learned trial Court. It is no where mentioned in the plaint that the Will was obtained by the defendant taking advantage of old age, 4 infirmity and ailment of Smt. Mehando. It was not pleaded by the plaintiffs that Will dated 13.8.1981 was not executed in favour of defendant by Smt. Mehando. The simple case of the plaintiffs was that Smt. Mehando was a limited owner on the basis of Will Ext.PW5/A dated 7.9.1967 and thus, she could not alienate the suit land by way of Will. It has already been noticed above that there is a concurrent finding recorded by both the learned Courts below that Smt. Mehando had become absolute owner of the property in question. She was competent to execute the Will in favour of defendant, who was son of her real brother. Since the execution and validity of the Will was never in question, the defendant was not required to produce and prove the Will. The learned trial Court had erred in law by recording a finding that it was necessary for the defendant to prove the Will in question. It is evident from the judgment Ext.D-1 dated 27.2.1986 and the judgment Ext. D-3 that Smt. Mehando had become absolute owner of the property under sub section (1) of Section 14 of the Hindu Succession Act. The findings recorded by the learned Additional District Judge being based on the correct appreciation of evidence are not liable to be interfered by this Court. There is no substantial question of law involved in this appeal. Accordingly, the regular second appeal is dismissed. No costs. (Rajiv Sharma), J. September 22, 2008. (cr)