IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 189/1999 Reserved on : 2.9.2009 Decided on:21.10.2009 Rajinder Singh and others. …Appellants. Versus Sadhu Ram and another. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the Appellants : Mr. Bimal Gupta, Advocate. For the Respondents : Ms Devyani Sharma Advocate vice Mr. Ramakant Sharma, Advocate for respondent No.1. None for other respondents. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 1.4.1999 passed by the learned Additional District Judge. Sirmaur District at Nahan in Civil Appeal No. 52-N/13 of 1998. Brief facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for possession on the averments 1 Whether the reporters of Local Papers may be allowed to see the judgment?. yes. 2 that late Sh. Asha Ram son of Sh. Tika Ram was owner in possession of the suit land detailed in Khata khatauni No.25, Khasra No. 233 measuring 38-15 bighas situated in village Dhangwala, Mauja Bir-Bikram-Abad as per Jamabandi for the year 1984-85. Sh. Asha Ram and his wife Smt. Pato Devi were old and infirm and used to live in the house of the plaintiff. The plaintiff is their nephew. He and his father late Sh. Harnam Singh used to look after and serve the couple. Sh. Asha Ram out of his free will voluntarily executed the will dated 26.7.1973 in favour of the plaintiff, which was got registered on 16.8.1973 before the Sub Registrar, Naraingarh, District Ambala whereby he has bequeathed his entire movable and immovable including the suit property to his father Sh. Harnam Singh. Vide mutation No. 404 dated 28.2.1987, the inheritance of the suit property was attested in favour of Pato Devi on the basis of the some will alleged to have been executed by late Sh. Asha Ram bequeathing the suit property in favour of Pato Devi. Late Sh. Asha Ram did not execute any valid will in favour of his wife Smt. Pato Devi nor thereby superseded the registered will dated 26.7.1973 in favour of father of the plaintiff late Sh. Harnam Singh. According to the plaintiff, the mutation No. 404 in favour of Smt. Pato Devi with regard to the suit property does not confer any right, title or interest on Smt. Pato Devi. Smt. Pato Devi died on 9.6.1993. According to the plaintiff, respondents- defendants No.1 to 3 (hereinafter referred to as the defendants No.1 to 3) being clever person took Smt. Pato Devi to Nahan and in connivance with Sh. Raj Krishan and Sh. Vijay Singh procured her thumb impression on the papers and prepared the will and got the same registered with Sub Registrar, Nahan on 27.3.1987. The Assistant Collector IInd Grade, Nahan on 17.7.1993 without following the procedure prescribed under law 3 attested the mutation No. 442 of the suit property in favour of defendants No.1 to 3 on the basis of the fraudulent and forged will dated 25.3.1987. The written statement was filed on behalf of contesting defendants No.1 to 3. They have denied that deceased Asha Ram and Pato Devi were being served by the plaintiff or his father. It is further stated by the defendants that Sh. Asha Ram had executed will dated 31.3.1981 which was registered on 4.4.1981 with the Sub Registrar, Nahan in favour of his wife Smt. Pato Devi whereby the earlier will was cancelled. This will was given effect to in the revenue record vide mutation No. 404 attested on 28.2.1987 by the Assistant Collector 1st Grade, Nahan. The learned Sub Judge 1st Class, Sirmaur at Nahan dismissed the suit on 30.5.1998. The plaintiff preferred an appeal before the Additional District Judge, Nahan. He allowed the appeal on 1.4.1999. This Regular Second Appeal has been preferred against the judgment and decree dated 1.4.1999. The same was admitted on the following substantial questions of law: 1. “Whether learned Additional District Judge has misconstrued, misinterpreted and misapplied the material on record in accepting Ex.PB will dated 26.7.73 registered on 16.8.73 executed by Asha Ram in favour of Harnam Singh and rejecting Ex. DW-10/A will dated 31.3.81 registered on 4.4.81 of Asha Ram in favour of Smt. Pato Devi and cancelling Ext. PB will dated 26.7.73 and also rejecting Ext. DW-9/A will dated 25.3.87 registered on 27.3.87 of Smt. Pato Devi in favour of defendants 1 to 3? 2. Whether learned Additional District Judge has erred in not considering the conduct of Harnam Singh late father of plaintiff not claiming succession after death of Asha Ram on the basis of will Ex.PB dated 26.7.73, thus accepting of will Ext. DF dated 31.3.81 of Asha Ram in favour of Smt. Pato Devi? 4 3. Whether plaintiff who is son of Harnam Singh has locus standi to challenge will Ext. DF dated 31.3.81 of Asha Ram in favour of Smt. Pato Devi and will Ext. DW-9/A dated 25.3.87 of Smt. Pato Devi in favour of defendants 1 to 3 when his father Harnam Singh in his life time has not challenged will Ext. DF vide which will Ext. PB dated 26.7.73 was revoked by Asha Ram? 4. What is the effect of non-consideration of material evidence by learned Additional District Judge in the form of statement of DW-5 Des Raj, proving that defendants Chatter Singh and Rajinder have been included in the family of Asha Ram and Smt. Pato Devi in the family register, Ext. DW-7/A receipt dated 16.8.93 etc. proving liquidation of debts of Smt. Pato Devi by defendants 1 to 3, Ext. DE plaint proving that Smt. Pato Devi had filed suit against Harnam Singh etc.?” Mr. Bimal Gupta, Advocate has vehemently argued that the judgment and decree passed by the learned Additional District Judge is not sustainable. He has supported the judgment and decree passed by the learned trial court. According to him, the defendants have proved the execution of the will. Ms. Devyani Sharma, Advocate has supported the judgment and decree passed by the learned Additional District Judge. I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are inter-linked and inter- connected, therefore, the same are being taken up together for determination to avoid repetition of discussion of the evidence. The will was executed on 26.7.1973 in favour of the plaintiff’s father by Sh. Asha Ram. It was registered on 16.8.1973 before the Sub Registrar, Naraingarh, District Ambala. The second alleged will was 5 executed by Sh. Asha Ram in favour of Pato Devi on 31.3.1981 and was registered on 4.4.1981. Smt. Pato Devi has executed will in favour of the defendants on 25.3.1987. The will executed on 31.3.1981 is Ex.DF and also Ex.PW-10/A and will dated 25.3.1987 is Ex.DW-9/A. These wills are registered documents. The plaintiff is son of Sh. Harnam Singh, who was the real brother of Smt. Pato Devi’s husband, namely, Sh. Asha Ram. Sh. Asha Ram has executed the will dated 26.7.1973 Ex.PB in favour of the plaintiff’s father Sh. Harnam Singh. The will Ex.DW-10/A was scribed by Sh. Shamshed Ahmed, Petition Writer. He has not come in the witness box to prove the execution of the will. He has not appended his signatures on the will. He has only put his seal, which shows the date 31.3.1981 whereas the will was registered on 4.4.1981. S/Sh. Ram swaroop and Raj Krishan are two marginal witnesses of the will. Sh. Ram Sarup has not come in the witness box. Sh. Raj Krishan has not mentioned at all the month and the year in which the will was scribed or executed. Defendants No.1 to 3 are Jheenwers and Asha Ram and Pato Devi were Hindu Gujjar by caste. The statement of DW-1 that he had been serving Smt. Pato Devi and her husband has rightly been discarded by the learned Additional District Judge. He has stated that he was 14-15 years when he is stated to have started serving Pato Devi and her husband. It has come on record that late Sh. Asha Ram and Pato Devi were financial well off. DW-8 Sh. Vijay Singh has not given the month and year when the will Ex.DW-9/A was scribed. DW-1 has deposed that Pato Devi was not having well disposing mind. She was seriously ailing for the last 15 years. DW-3 has admitted in his cross-examination that for the last 15 years prior to her death, Pato 6 Devi was not able to understand good or bad. DW-1 has also admitted in his cross-examination that Pato Devi was unable to move three years prior to her death. DW-6 has deposed that the will was scribed by Sh. M.K. Jain DW-9 and it remained with him. According to him, DW-9 Sh. M.K. Jain brought it to the office of D.R.O. DW-8 Vijay Singh on the other hand has submitted that after the will was scribed, it was in the custody of Pato Devi. According to him, the will remained in her custody till next date. The will admittedly was not registered on 25.3.1987. According to him, defendant No.1 could not register the same as the Tehsildar was not present in the office. According to him, it was put up before the D.R.O. office on the next day. Ex.PW-2/A and Ex.PW-2/J have been placed on record by the plaintiff. PW-2 Prem Latta, Clerk from the office of the Sub Registrar has testified these documents. A bare perusal of these documents reveals that the Sub Registrar was present in his office on 25.3.1987 and during the course of the day he did office work, including registering a will made by one Ranjeet Singh and one mortgage deed. In these circumstances, the version of the defendants that the Sub Registrar was not present on 25.3.1987 has been rightly discarded by the learned appellate court. Sh. Chatter Singh is one of the beneficiaries of the will. He has taken a prominent part in the execution of the will. DW-6 has admitted that DW-1 had called him. DW-1 was present throughout at the time of execution of the will. There is difference in the size and style of the thumb impression appended on the will on 25.3.1987. The thumb impression appended on 25.3.1987 is bigger in size with the one which was appended before the Sub Registrar on 27.3.1987. On the first page of Ex.PW-9, the Registrar has given the date under his seal and signatures as on 26.3.1987 whereas the endorsement bearing two thumb 7 impressions of Pato Devi at one and the same place is dated 27.3.1987. This has not been explained by the defendants. What emerges from the discussions made hereinabove is that the defendants have failed to remove suspicious circumstances. The propounder of the will has to prove the due and valid execution of the will. He has to remove the suspicious circumstances. Smt. Pato Devi and Asha Ram belong to Hindu Gujjar. The defendants are Jheenwers. The scribe of will Ex.PW-10/A has not appeared. Only one marginal witness has appeared in support of Ex.PW-9/A. His version has also rightly been discarded by the learned first appellate court. He could not give the date and month of the execution of the will. Similarly, DW-9 could not give the exact month and year when the will was scribed. It has come in the evidence that Smt. Pato Devi and her husband were well off. In these circumstances, there was no occasion for them to seek the assistance of defendants. Smt. Pato Devi as per the evidence brought on record was of feeble mind. The other circumstance which goes against the defendants is that the Sub Registrar (Tehsildar) was present in his office on 25.3.1987 and in these circumstances the will could not be produced before the D.R.O. for registration. There is difference in the size and style of the thumb impressions on the will. Accordingly, in view of the observations made hereinabove, there is no substantial question of law involved in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. 21.10. 2009 (Rajiv Sharma ), J. *awasthi*