IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 407 of 1995 Date of Decision 14.7.2008 __________________________________________________________ 1. RSA No. 407 of 1995 Om Parkash & others. ….Appellants. Versus Bhup Singh & others. ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 __________________________________________________________ RSA No. 407 of 1995 For the Appellant: Shri Ramakant Sharma, Advocate. For the Respondent: Shri B.K. Malhotra, Advocate __________________________________________________________ Dev Darshan Sud, J. This is the plaintiff’s appeal against the judgment and decree of learned District Judge, Mandi reversing the judgment and decree passed by learned Sub Judge Ist Class, Sundernagar decreeing the suit of plaintiffs and granting a decree of permanent prohibitory injunction in favour of the plaintiffs for the suit land. The plaintiffs brought the suit on the allegations that Daulat Ram was owner in possession of suit land. He was the plaintiff’s uncle. The facts set 1 Whether reports of Local Papers may be allowed to see the judgment? 2 out by plaintiff are that the last will and testament Ext.PW2/A was executed by the testator on 12.7.1987 and that the earlier will dated 4.2.1987 executed in favour of defendants/respondents Ext.DW10/A was revoked and not binding on their interest. The defendants-respondents resisted the suit on the ground that they are the owners in possession of the suit land on the basis of will executed by deceased Shri Daulat Ram on 4.2.1987 Ext.DW10/A. The learned Trial Court, after consideration of the evidence on record, held that will Ext.PW2/A executed by testator in favour of plaintiffs was his last will and testament and had been proved in accordance with the provisions of Section 63 of Indian Succession Act, 1925 (hereinafter referred to as Act). The will set up by defendants Ext.DW10/A had been revoked by the testator. The learned Appellate Court reversed the judgment on the ground that plaintiffs had been unable to discharge the onus and burden of establishing the genuine nature of the will set up by them. The learned Appellate Court has held that the execution of Ext.PW2/A is shrouded by suspicious circumstances. According to the Appellate Court, PW2 Amar Chand admits that will was not scribed in his presence. The defendants also proved the fact that after the execution of the will, the testator had died and these suspicious circumstances coupled with the fact that beneficiaries of the testamentary disposition had taken the active part in the execution of the will was sufficient to negate the genuine nature of Ext.DW2/A. This appeal was admitted on 3.1.1996 on substantial questions of law Nos. 1 to 3 and 6, which are as under:- 1. Whether the impugned judgment and decree is the result of complete mis-reading, mis-interpretation as well as mis- appreciation of provisions of Section 63 of the Indian 3 Succession Act as well as Sections 67 and 68 of the Indian Evidence Act? 2. Whether the appellants have been successful in proving will dated 12.7.1087 Ext.PW2/A executed by late Shri Daulat Ram? 3. Whether the respondents have failed to prove will in their favour dated 4.2.1987 Ext.DW10/A? 6. Whether the will Ext.DW10/A is an erroneous document as well as invalid will keeping in view the fact that on the date on which it has been allegedly executed by late Shri Daulat Ram, late Shri Daulat Ram was admitted in Hospital as indoor patient which fact is clear from Ext.PW5/A as well as from the statement of PW5? I have heard learned counsel for parties and gone through the record. The learned Appellate Court is in clear error in arriving at the conclusion that will Ext.PW2/A is shrouded with suspicious circumstances. This reasoning can be termed as conjectural. Reading of the evidence of PW2 Amar Chand did not show that the findings arrived at that testator was not present at the time of execution of will cannot be sustained. This witness is clear in his testimony in stating not only that the disposition was made by testator and that his directions were recorded and scribed in Ext.PW2/A but also that before the will was signed, it was readover and explained to him by PW3 Asif Khan who was the scribe of will and has supported PW2 Amar Chand on all material particulars. This witness is also clear in his deposition that the testament was scribed according to the wishes and directions of the testator and that it was signed by the witnesses in the presence of testator. This was rightly held by the learned Trial 4 Court on a detailed appreciation of evidence before it. If the evidence has not been rightly considered and appreciated by learned appellate Court, if the conclusions arrived at are not supported by the evidence or are perverse, it is always open to this Court to correct such errors in appeal. The mere fact that the testator was old does not conclusively established that he was not possessed of a sound mental disposing state of mind and was not in a position to understand the disposition which he was making. This fact had to be established by leading reliable evidence and was not a mere matter of conjecture and inference. Once the due execution of the will was established, the intention of the testator as expressed in the will was to be given effect to. The learned District Judge has also not considered the fact that the will Ext.DW10/A set up by the defendants is said to have been executed on 4.2.1987 at the time when the testator was admitted in hospital as an indoor patient from 2.2.1987 to 18.2.1987 as proved by PW5 Dr. D.R. Barwal, Medical Officer Incharge Civil Hospital, Sungernagar who proved Ext.PW5/A which was the medical record of the hospital showing that the testator had been admitted there between 2.2.1987 to 18.2.19897 as an indoor patient. He is a non-partisan witness and there is no reason to disbelieve his testimony. The testimony of DW10 Upender Singh, who has stated that he scribed the will Ext.DW10/A, set up by the defendants, was rightly rejected by the trial Court as being unreliable in view of the medical condition of the testator. In Kartar Chand and others Vs. Mathura Dass and others 2004 2004(2) Cur. L.J. (H.P.) has held that the presence of the beneficiary at the time of execution of the will or his accompanying the testator for its execution does not show exercise any undue influence on the testator. Counsel for the appellant places reliance on the decision of this Court in Bali Devi Vs. Smt. Drumti Devi 2000 (2) SLJ 1722 holding that the validity of a will depends on the testator being 5 of a sound disposing mind at the time executing will and not on his age. Merely, because a person is of an advanced age does not by itself lead to the presumption that he/she is not of a sound disposing mind. In Shanti Devi Vs. Dali Devi 2002 (2) SLJ 1095, this Court held that mere fact that the testator was of 90 years of age at the time of execution of the will does not mean that he is not of a sound disposing mind. Mere presence or participation of a beneficiary does not by itself make the execution of a will suspicious, (See Sushil Kumar Vs. Jagdish Raj 2006 (1) SLJ HP (238)). In Durga Vs. Anil Kumar (2005) 11 SCC 189 the Supreme Court held that testimony of the attesting witness that the testator was in sound disposing mind cannot be brushed aside. The learned appellate Court has not considered the judgments relied upon by the learned trial Court viz. Smt. Malkani Vs. Jamadar and others AIR 1987 SC 767 where the participation of the beneficiary is not considered as a suspicious circumstance and Brij Mohan Lal Arora Versus Girdhari Lal, AIR 1978 SC 1202, holding that the advanced age of the testator is of no consequence provided he is of a sound disposing mind. There is nothing on record to suggest that the testator Daulat Ram was not of sound disposing mind. His daughter PW4 Kaushlya Devi has stated that when she met the testator two/three days prior to the execution of the will Ext.PW2/A, her father (testator) was in a sound mental condition. The evidence of PWs 2 and 3 is also unrebutted on this point when they are unanimous in their testimony that the testator had actively participated in the execution of the will and directed the disposition of his estate which was faithfully recorded and the document readover to the testator who acknowledged it to be correct. In these circumstance, I hold that learned District Judge was clearly wrong in setting aside the well reasoned judgment of the trial Court ignoring the evidence of the scribe PW3 and the attesting witnesses PW2 and in not following the principles of law as applicable to the facts of the case. The questions raised in this appeal for 6 determination are answered in favour of appellant herein that is to say that learned Appellate Court has not at all considered the provisions of Section 63 of the Indian Succession Act and 67 of and 68 of the Indian Evidence Act. The appellant has successfully established that Ext.PW2/A was the last will and testament of the deceased and that Ext.DW10/A has been rightly rejected by learned trial Court. This appeal is accordingly allowed. The judgment and decree of learned Trial Court is restored. The judgment and decree passed by learned District Judge is quashed and set aside. The questions of law are answered in favour of appellants. There shall be no order as to costs. July 14,2008 (Dev Darshan Sud), (ms) Judge