IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.371 of 2003. Judgment reserved on: 21st June, 2010. Date of Decision: 25th June, 2010. _______________________________________________________ Dharam Chand ..Appellant. Versus Smt. Mansa Devi ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. For the respondent: Mr. Ramakant Sharma, Advocate. ____________________________________________________ SURINDER SINGH, J. The present Regular Second Appeal has been admitted for hearing on the following substantial questions of law:- (1) Whether the evidence produced by the respondent being beyond the scope of pleadings, therefore, no reliance can be placed thereon and the suit was required to be dismissed. (2) Whether the subject matter of the dispute can not be decided in the absence of all the necessary parties. Since the plaintiff claimed Will in favour of the appellant to be invalid, Whether reporters of the Local papers are allowed to see the judgment? - 2 - therefore, she alone can not be held to be so legal heirs of the deceased and thus dispute could not have been decided in the absence of daughters of deceased Smt. Bhonchi and Smt. Bhujlan. 2. In brief, the facts giving rise to this second appeal are that appellant herein, asserted Will dated 22.8.1995 alleged to be executed by Shri Dhari Ram, husband of the respondent in his favour and also in favour of the respondent in equal share. On its basis mutation No.389 was accepted and attested on 18.11.1995 to the exclusion of all other legal heirs. Respondent wife of the testator filed the suit challenging the Will and pleaded that she and her husband belonged to Ghirath community and used to earn their livelihood by cultivating the land. Thus, they were governed by Kangra Customary law in the matter of alienation and no male could alienate his property by way of Will, gift, sale etc. Thus, the Will in question was wrong, illegal and not binding on her right, title and interest and sought declaration that the mutation accepted and attested on the basis of Will was wrong and illegal. 3. The appellant resisted and contested the suit by raising the preliminary objections of maintainability, non-joinder of necessary parties, estoppel, valuation - 3 - etc. viz-a-viz questioning the locus-standi of the respondent to file the suit. On merits, it was contended that no such custom, as pleaded, is prevailing in the area, which disqualified the Ghirath community to alienate the property by way of Will. It was also averred that the appellant being the grand-son of said Shri Dhari Ram, was brought up by him in his village Arla, right from his childhood. He also served Shri Dhari Ram throughout his life and out of his love and affection, he executed the Will aforesaid in sound disposing state of mind without any threat, coercion or misrepresentation. The Will being genuine, legal and was binding upon all concerned. It was also contended that earlier Will was executed by said Shri Dhari Ram bequeathing his estate in favour of his daughters Bhonchi Devi and Bhujlan Devi, which was subsequently revoked by present Will. Hence prayed for dismissal of the suit. 4. These facts were denied in replication filed by the plaintiff-respondent and even paras of the plaint were reiterated. 5. From the pleadings aforesaid, the parties were on the following issues:- 1. Whether Will of late Sh. Dhari Ram executed in favour of the defendant is hit by Kangra Customary Law, as alleged? OPP. - 4 - 2. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP. 3. Whether Sh. Dhari Ram has executed a valid registered Will? OPD. 4. Whether the suit is not maintainable in the present form? OPD. 5. Whether the suit is bad for non-joinder of necessary parties? OPD. 6. Whether the plaintiff is estopped by his act and conduct? OPD. 7. Whether the plaintiff has no locus standi to sue? OPD 8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 9. Whether the suit is barred by limitation? OPD. 10. Relief. 6. The learned trial Court, after complete trial held issue No.1 in affirmative and others were in negative, as such suit was decreed to the effect that the defendant/appellant had no right, title or interest in the suit land and the Will dated 22.8.1995 Ext.D.1 was not a genuine document and the mutation accepted and attested thereupon is the result of fraud and misrepresentation, thus it was set aside. Consequently, the respondent was restrained from alienating his share on the basis of the Will referred to above and estate of deceased Dhari Ram was - 5 - ordered to be mutated as per provisions of Hindu Succession Act upon his all legal heirs. 7. The defendant/appellant felt aggrieved by the impugned judgment and decree, as such filed the appeal before the learned District Judge, which did not find favour of the learned District Judge, therefore, dismissed. Hence the present Regular Second Appeal by the defendant under Section 100 of the Code of Civil Procedure. 8. Shri G.D. Verma, learned Senior Advocate duly assisted by Shri B.C. Verma, vehemently argued that the deceased Dhari Ram was having two wives, the present respondent and also one Smt. Makori Devi, who was deaf and mute. He had also two daughters Bhonchhi Devi and Bhujlan Devi in whose favour the Will mark “B” was executed and registered on 14.9.1991, but subsequent to that, the Will in question was executed and attested on 22.8.1995, which was duly registered whereby the earlier Will was revoked/ cancelled and the beneficiaries under the last Will were the parties to the present lis to the extent of equal share. He further argued that in absence of legal heirs aforesaid, the respondent could not have maintained the suit in the present form because the others have no grouse against the Will in question. - 6 - He further argued that the respondent did not step into the witness box, therefore, the adverse inference was required to be drawn. Further that the present suit was a handiwork of the Power of Attorney, who examined himself in place of the plaintiff-respondent. He also submitted that the Will in question was a registered document, the presumption was attached to its correctness. He also argued that the suspicious circumstances as pointed out by the trial Court and endorsed in appeal were not based on evidence. Therefore, the judgments and decrees passed by the Courts below deserve to be set aside. 9. Contra, Shri Ramakant Sharma, forcefully argued that there are concurrent findings of fact of the Courts below and no question of law muchless substantial question of law arises in this appeal. He further ventilated that the onus to prove the Will was on the appellant to which he miserably failed and there were suspicious circumstances which remained unexplained. The non-appearance of the respondent as her own witness would not make any difference, thus supported the concurrent findings of the Courts below. - 7 - 10. I have given my thoughtful consideration to the rival contentions of the parties and have carefully examined the record. 11. At the very outset I would like to say whether the Will is registered or unregistered, it would have the same value, but it is imperative on its propounder to prove it like a crucial case beyond doubt in accordance with law and repel all the suspicious circumstances. The judgment cited by the learned Counsel for the appellant in Suraj Lamp and Industries Private Limited v. State of Haryana and another, (2009) 7 SCC 363 is not applicable in the case of a Will. Further, no presumption can be drawn in favour of the registered Will about its genuineness. 12. The learned trial Court disbelieved the Will Ext.D.1 on the following grounds:- (i) The deceased Dhari Ram had two wives, i.e., one is the respondent and another is Makori Devi, who is deaf and mute, both are alive. The deceased also had two daughters, namely Bhonchhi and Bhujlan Devi and no provision was made for them, for that no explanation has been offered in the Will. - 8 - (ii) DW3 Julfi Ram, marginal witness of the Will Ext.D.1, stated that the Will was written in his own hand by Shri Pardeep Lakhanpal, Advocate, while the said Will was a typed document and this material contradiction was not explained. (iii) DW4 Pardeep Lakhanpal, Advocate, stated that the Will was typed on the spot at village Arla by Shri Naveet Kumar, typist who was accompanying him to the spot and the Will was got registered on commission by the Sub Registrar, whereas DW4 Navneet Kumar, typist testified that the said document was typed on the instructions of Shri Pardeep Lakhanpal, Advocate in the Tehsil campus and said Shri Dhari Ram executor of the Will was not present even in the campus. He also stated that he did not accompany said Shri Pardeep Lakhanpal, Advocate to the spot. (iv) It is alleged that during that time the deceased was about 85 years of age and was having a paralytic attack. Otherwise also, when the commission was issued, that - 9 - means that he was not in a position to move. 13. In the above factual scenario, in my opinion, the learned trial Court rightly disbelieved the Will and so the first appellate Court. 14. Against the aforesaid background, non- examination of respondent is not fatal to her suit as it is not disputed that she was not the wife of deceased Dhari Ram. The onus to prove the Will was on the defendant-appellant. The aforesaid suspicious circumstances could not be dispelled and the Will in question was also rightly held to be not genuine for the reasons aforesaid. 15. The next point taken that Smt. Makori and daughters of the deceased were necessary parties and no effective decree could have been passed by the Courts below also in view of the earlier Will in their favour. I have considered this argument. 16. The present suit for declaration was filed by the respondent assailing the Will propounded by the appellant qua the estate of late Shri Dhari Ram which was also to save the interest of other statutory heirs. Therefore, they are not necessary parties. 17. For the reasons aforesaid, the concurrent findings of facts require no interference. The substantial - 10 - questions of law are accordingly answered. As such, the appeal deserves to be dismissed. Ordered accordingly. No costs. June 25, 2010. (Surinder Singh), J. (rc)