IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.406 of 1999 Date of decision : June 24, 2010 Nathu …Appellant. Versus Bhagtu and another …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. K.D. Sood, Advocate. For the Respondents : None. Surjit Singh, J (Oral) Plaintiff has preferred this appeal against the judgment and decree dated 4th November, 1999 of learned District Judge, whereby dismissing the appeal of the plaintiff-appellant, learned District Judge has affirmed the judgment and decree dated 28th November, 1994 of learned Sub Judge 1st Class (trial Court). 2. Plaintiff filed a suit for declaration that he had inherited the estate of late Smt. Jehndi, she being his father’s brother’s widow, on her death, which took place in the year 1987 and that the purported Will of Jehndi, propounded by the respondents, was forged and as such not binding on him. By way of further relief, he prayed for issuance of permanent prohibitory injunction, restraining the defendants-respondents from interfering in his Whether reporters of the local papers may be allowed to see the judgment? …2… possession over the estate of said Jehndi. It was stated that plaintiff’s father Nihalu and Jehndi’s husband Jhumka were real brothers and they were joint owners of the property, which they had inherited from their father and that on the death of Jhumka, Jehndi inherited his share and since Jhumka and Jehndi were issueless, after the death of Jehndi in the year 1987, he had inherited her estate. 3. Defendants-respondents denied plaintiff’s claim and pleaded that Jehndi had executed a Will in their favour on 9th January, 1987, which had been duly registered by Sub Registrar of documents and on the basis of that Will they had become owners of the suit property. 4. Trial Court framed various issues, on the pleadings of the parties and at the end of trial gave the finding that Jehndi had executed a valid Will in favour of the defendants-respondents. Consequently, the suit was dismissed. Appeal filed by the plaintiff-appellant against the judgment and decree of the trial Court has been dismissed by the first Appellate Court (District Judge). 5. This appeal was admitted on the following substantial questions of law: “1. Whether the findings of the court below on the construction and due execution of the will Ex. DW-2/A executed by Smt. Jehndi, who was rustic and deaf and dumb lady, are vitiated because of the non explaining of the suspicious circumstances attached with the execution and registration of the will? …3… 2. Whether, when the propounder, who had taken active part in the execution of the will and which will deprived the natural heirs and also because of the non- compliance of Section 63 of the Indian Succession Act, the will could be relied upon so as to non-suit the appellant. 3. Whether the findings of the court below are vitiated for not considering the request of the appellant for sending the thumb impression for comparison with original Patta to show that the will was thumb marked by Sajjo and not Smt. Jehndi and which has resulted in failure of justice.” 6. I have heard the learned counsel for the appellant and gone through the record. Nobody appears for the respondents. 7. Defendants examined the scribe and the marginal witness of the Will. Scribe is DW-2 Amar Nath, who testified that the Will was scribed by him at the instance of Jehndi. DW-3 Bhagat Singh is one of the marginal witnesses, who attested the Will. He testified that Will had been got scribed by Jehndi from DW-2 Amar Nath (scribe) and that she thumb impressed it in his presence and thereafter he and the other marginal witness put their signatures. 8. DW-5 Shyam Lal Garg, Sub Registrar, testified that the Will was presented to him by Jehndi and he read over and explained the same to her. He stated that the lady was identified by one Kanshi Ram. …4… 9. Testimony of the abovenamed witnesses sufficiently proves the execution of the Will. It has been denied by DW-5 Shyam Lal Garg that the lady was deaf and dumb. He stated that he read out and explained the contents of the Will to her and after understanding the same she put her thumb impression. So, substantial question of law No.1 is answered against the plaintiff- appellant. 10. The mere fact that propounder of the Will took some part in the execution of the Will or that the natural heir has been deprived of the estate completely cannot be taken to be so strong a suspicious circumstance, as to doubt the validity of the Will, especially when its execution has been proved beyond doubt and its registration has also been proved to have been carried out at the instance of the testatrix herself. So, substantial question of law No.2 is also answered against the appellant. 11. As regards substantial question of law No.3, suffice it to say that thumb impression on Patta Ex. PW-2/A, impression on which was sought to be got compared with the thumb impression of the testatrix on Will Ex. DW-2/A is so ink-smudged that it is not possible to decipher the same and, therefore, the application of the plaintiff-appellant for comparison of thumb impression on the Will with the thumb impression on the Patta, even if allowed by the District …5… Judge, would have served no purpose. So, this substantial question of law is also answered against the plaintiff- appellant. As a result of the aforesaid discussion and answers to the substantial questions of law, on which the appeal was admitted, it is held that the appeal is without merit. The same is, therefore, dismissed. June 24, 2010(sd) ( Surjit Singh ), J