IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R. S. A. No. 110 of 2000 Judgment reserved on : 30.3.2010 Date of decision : 24.4.2010 Zalpu and another …Appellants. Versus Raj Kumar … Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Appellants : Mr. G.D.Verma, Senior Advocate with Mr. B.C.Verma, Advocate. For the Respondent : Mr. Vinay Thakur, Advocate. Kuldip Singh, Judge This appeal is directed against the judgment, decree dated 01.11.1999 passed by learned District Judge, Shimla in Civil Appeal No. 59-S/13 of 1997 reversing the judgment, decree dated 31.5.1997 passed by learned Sub Judge 1st Class, Theog in Civil Suit No. 234/1 of 1992. 2. The facts, in brief, are that appellants had filed suit for declaration and injunction against the respondent on the ground that deceased Jania and appellant No.2 were recorded joint owners in possession of land comprised in Khata No. 41/28, Khatauni No. 46/33 and 47, Khata No. 41, Khatauni No. 48, Kitas 7, 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 measuring 21 bighas 7 biswas situated in Chak Jungal Rohru, Pargana Shilli-Nalli, Tehsil Theog, District Shimla vide jamabandi for the year 1990-91. The appellant No.2 and deceased Jania were in separate possession of their shares of the land and the double storey house built on Khasra No. 12 by virtue of family arrangement. Jania has died on 28.10.1991, appellant No.1 is his widow. Jania had no issue, therefore, appellant No.1 being his widow is her only legal heir. 3. On 2.7.1990 Jania had executed a Will in favour of appellants bequeathing khasra No. 8 in favour of appellant No.2 and remaining share in the suit land in favour of appellant No.1. The appellants have inherited the share of Jania after his death on the basis of his Will dated 2.7.1990. 4. The appellants had presented the Will dated 2.7.1990 of Jania before Revenue Officer for attestation of mutation of inheritance of Jania. The respondent used to reside with Jania and appellant No.1, also produced false, forged Will dated 26.10.1991 of Jania in his favour. The Revenue Officer has wrongly attested on 28.10.1992 the mutation No. 165 of inheritance of Jania in favour of respondent on the basis of fabricated document dated 26.10.1991. Jania had never executed a Will dated 26.10.1991. He had filed a criminal complaint against respondent and Smt. Bimla for harassing him. Jania had revoked the Will earlier executed by him in favour of the respondent for the aforesaid reason. The respondent is threatening to interfere in possession of the appellants on the basis of mutation No. 165. 3 5. The suit was contested by the respondent and has alleged that appellant No.1 is not legally wedded wife of deceased Jania, she used to live with Jania as his keep. She is not the legal heir of deceased Jania. It has been denied that Jania had executed a Will dated 2.7.1990 in favour of the appellants. The appellant No.1 was not married to Jania, she and others took Jania to Theog on the pretext of writing a letter of marriage, but instead plaintiffs got thumb impression of Jania on alleged Will in favour of the appellants. 6. Jania was looked after and maintained by the respondent, who was having good terms with Jania. Jania had executed Will dated 7.6.1984 in favour of respondent. Jania had suspected that appellants had procured his signatures on wrong paper, therefore, on 26.10.1991 Jania again executed a Will in favour of respondent in presence of Manohar Lal and Bimla. The last rites of Jania were performed by respondent. After the death of Jania respondent presented the Will dated 26.10.1991 and on that basis mutation No. 165 was rightly attested in favour of the respondent. 7. The appellants filed replication. On the pleadings of the parties, the following issues were framed:- 1. Whether Jania has executed a legal and valid will in favour of plaintiffs as alleged? OPP. 2. Whether Jania has executed a legal and valid will in favour of defendant as alleged? OPD 3. Whether the plaintiff No.1 is not a legally wedded wife of Jania as alleged? OPD 4. Relief. 4 The issue No.1 was answered in affirmative whereas issues No.2 and 3 were answered in negative and the suit was decreed by learned Sub Judge on 31.5.1997. The respondent had filed appeal which was allowed by the learned District Judge on 1.11.1999, hence second appeal which has been admitted on following substantial questions of law:- 1. Whether Will exhibit DW-2/A set up by the respondent has not been prepared in conformity with the mandatory provisions of Indian Succession Act. 2. Whether Will exhibit PW-3/A, in favour of appellants having been found to be valid by both the courts below and since the same has not been found to have been cancelled, therefore, the findings of the Ld. District Judge, below are illegal? 3. Whether the findings recorded by Ld. District Judge below are vitiated on account of misreading of pleadings as well as oral and documentary evidence on record? 4. Whether the trial court having opportunity to record the evidence have appreciated the same correctly and the well reasoned judgment recorded by the trial court have been upset on un- sustainable grounds? 8. I have heard the learned counsel for the parties on the aforesaid substantial questions of law and have also gone through the record. The learned counsel for the appellants has submitted that the learned District Judge has erred in reversing the well reasoned judgment of learned Sub Judge and he has prayed for acceptance of appeal. The learned counsel for the respondent has supported the impugned judgment, decree. 9. The Will dated 26.10.1991 Ex.DW-2/A is most crucial and in case execution of Will Ex.DW-2/A is established, then the question of proof of execution of Will dated 2.7.1990 Ex.PW-3/A is 5 irrelevant. Therefore, to begin with substantial questions of law No.3 and 4 are considered in the light of substantial question of law No.1 and hence, substantial questions of law No.1, 3 and 4 are taken up collectively. 10. A Hindu Will is required to be executed in accordance with Section 63 of the Indian Succession Act, 1925. DW-1 Raj Kumar has stated that Jania had executed a registered Will mark ‘X’ in his favour. Zalpu and Kanshi Ram took Jania to Theog on the pretext of preparing affidavit of marriage. Jania was illiterate. Jania suspected that his signatures were obtained on some wrong papers. Thereafter, Jania had executed another Will copy mark ‘Y’ in his favour. He performed the last rites of Jania. The estate left behind by Jania after his death is in his possession. 11. DW-2 Basant Lal has stated that about 5 years ago he had scribed on the instruction of Jania his Will in favour of Raj Kumar, the same is Ex.DW-2/A. Jania was in sound disposing mind at the time of execution of Will Ex.DW-2/A. Jania was not under any pressure when Will Ex.DW-2/A was written. Jania had voluntarily executed the Will, which was read over and explained to Jania in vernacular, witnesses were also present there. Jania had put his thumb mark after accepting the contents of Will correct and true. He identified the thumb mark of Jania on point ‘A’ on the Will. The witnesses Manohar Lal and Bimla were present at that time, who also put their signatures on the Will. Jania had put his thumb mark on the Will in his presence as well as in presence of Manohar Lal and Bimla. The witnesses signed the Will in presence of Jania. 6 12. DW-3 Manohar Lal has stated that in his presence Jania got executed Will in favour of Raju which was scribed by Basant Lal. At the time of execution of Will, he, Basant Lal and Bimla Devi and Jania were present. The Will was scribed on the instructions of Jania, who was in sound disposing mind and he knew about his welfare. Jania was not under any pressure when he executed the Will. Jania executed the Will voluntarily in favour of Raju. The Will was read over by Basant Lal to Jania in vernacular, Jania after understanding the contents of the Will had put his thumb mark on Ex.DW-2/A. He, Basant Lal and Bimla had seen Jania putting his thumb mark. Thereafter, he signed the Will as witness and then Bimla signed the Will. Jania had seen him and Bimla putting their signatures on the Will. 13. DW-4 Bimla Devi has stated that in her presence Jania had executed the Will and at that time Jania, Basant Lal, Manohar Lal and she were there. The Will is Ex.DW-2/A which was scribed by Basant Lal on the instructions of Jania, who was in fit state of mind. There was no pressure on Jania. The Will was voluntarily got executed by Jania. The Will was readover by Basant Lal to Jania in local language. Jania after understanding the contents of the Will had put his thumb mark in her, Manohar Lal and Basant Lal presence. Thereafter, Manohar Lal signed the Will and then she signed the Will. Jania, Manohar Lal, Basant Lal had seen her signing the Will. 14. DW-2, DW-3 and DW-4 were cross-examined at length but nothing favourable to the appellants was extracted in their cross- examination so far as execution of Will Ex.DW-2/A by Jania in favour 7 of respondent is concerned. The more said witnesses were cross- examined, more they confirmed that Will Ex.DW-2/A was voluntarily executed by Jania in favour of respondent. 15. The factum of execution of Will Ex.DW-2/A in favour of respondent is corroborated from various other factors. The appellants in the plaint had pleaded that respondent was living with Jania. It has come on record that Jania earlier had executed registered Will Ex.DW-5/A dated 7.6.1984 in favour of respondent which was scribed by DW-5 Sher Singh. DW-6 Inder Singh identified Jania before Sub Registrar, Theog by putting his signature at point ‘X’ on Ex.DW-5/A. DW-7 Sant Ram identified the signature of his father Parma Nand on the Will. PW-1 Kanshi Ram has stated that Jania had brought up Raj Kumar as his adopted son. PW-4 Jeet Ram has stated that the land of Jania is being cultivated by Raj Kumar and Kanshi. Raj Kumar was brought up by Jania from childhood. PW-7 Sadh Ram has stated that Raj Kumar was living with Jania. PW-11 Heeru is the brother in law of Jania. He has stated that Jania and Kanshi Ram had separate houses. PW-12 Dila Ram has stated that Jania and Kanshi were living separately. DW-1 Raj Kumar has stated that he looked after Jania and he performed his last rites. The estate left by Jania is now in his possession. He had been living with Jania, his mother and father had died. 16. It has come on record that the respondent was living with Jania, who brought up respondent like his son. The respondent was living with Jania during his life time and was also cultivating his land. Jania on 7.6.1984 had executed a Will Ex.DW-5/A in favour of 8 respondent. Jania suspected that some papers were got thumb marked from him by appellants and therefore, he thought the necessity to execute again Will Ex.DW-2/A in favour of respondent. The execution of Will Ex.DW-2/A has been proved by marginal witnesses DW-3 Manohar Lal, DW-4 Bimla Devi and scribe DW-2 Basant Lal. In view of proof of execution of Will Ex.DW-2/A, the existence of Will Ex.PW-3/A is of no help to the appellants. The last Will dated 26.10.1991 Ex.DW-2/A of Jania will prevail over Will dated 2.7.1990 Ex.PW-3/A. 17. The learned lower Appellate Court has rightly appreciated the material on record regarding execution of Will Ex.DW-2/A. The learned counsel for the appellants has failed to point out any suspicious circumstance regarding execution of Will Ex.DW-2/A which has been proved to be voluntarily executed by deceased Jania in favour of respondent. Therefore, case law Gurmel Singh Vs. Kartar Singh 1997 (Suppl.) CCC 161 (P&H), Lt. Col L.H.M. Gregory Vs. General Public & Others 1994(2) CCC 377 (H.P.) and Balbir Wati Vs. Jagbir Singh Arora 1993 CCC 252 (P&H) relied by learned counsel for appellants is of no help to appellants. The fact that Jania had died on 28.10.1991 in itself is no suspicious circumstance when it has been proved that on 26.10.1991 at the time of execution of Will Ex.DW-2/A the testator was in sound disposing mind, he understood his welfare. The Will does not require registration. 18. In Shakuntala Devi Vs. Savitri Devi and others AIR 1997 H.P. 43 after noticing Sushila Devi Vs. Pandit Krishna Kumar Missir, AIR 1971 SC 2236, it was observed that prima facie, 9 the circumstance that no bequest was made to the natural heir(s) by the testator would make the will appear unnatural, but if the execution of the Will is satisfactorily proved, the fact that the testator had not bequeathed any property to one of his children cannot make the Will invalid. In the same judgment coupled with other material on record, it was held that when no evidence has been led on behalf of the plaintiff to show that the deceased was not having a sound disposing mind at the relevant time, the deceased executed the Will in favour of the defendants while in sound disposing mind. In Dhyan Chand Vs. Smt. Savitri Devi and others AIR 1998 H.P. 37, it has been held that simply because there is no mention of the natural heirs or no reasons have been assigned for exclusion of the natural heirs in the Will, this will not make the Will suspicious if it is otherwise proved from cogent and reliable evidence. 19. There is no mis-interpretation, mis-construction and misreading of evidence by learned District Judge in the impugned judgment. The learned counsel for the appellants has failed to point out that the learned District Judge has considered inadmissible evidence or ignored material evidence in returning the finding that Will Ex.DW-2/A was validly executed by Jania in favour of respondent. The re-appreciation of evidence in second appeal is not possible. The substantial questions of law No.1, 3 and 4 are decided against the appellants. 20. I have already decided substantial questions of law No.1, 3 and 4 in favour of the respondent and against the appellants and, therefore, Will Ex.PW-3/A is of no help to the appellants for 10 putting claim regarding the estate of Jania after his death. The Will Ex.DW-2/A of Jania is latter in time in comparison to Will Ex.PW-3/A and therefore, Will Ex.DW-2/A will override the Will Ex.PW-3/A. The substantial question of law No.2 is thus decided against the appellants and in favour of the respondent. 21. No other point was urged. 22. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), April 24, 2010, Judge. (GR)