IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 240/1998 Reserved on:11.8.2008 Decided on:10.9.2008 Gian Chand. …Appellant. Versus Kali Devi and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.No. For the Appellant : Mr. K.D. Sood, Advocate with Mr. Rajnish K. Lal, Advocate. For the Respondents : None. Rajiv Sharma, J. This Regular Second Appeal has been preferred against the judgment and decree dated 16.2.1998 passed by the learned District Judge Mandi in civil appeal No. 86/1992. The brief facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a civil suit for declaration and possession on the basis of the will dated 2.12.1989 Ex.PW-2/A as well as for setting aside mutation No. 204 dated 5.4.1990 executed in favour of 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 daughters of deceased Mor Dassi i.e. defendants No.1 to 3. The suit was contested by the respondents-defendants (hereinafter referred to as ‘the defendants’ for convenience sake). It is admitted by the defendants that Smt. Mor Dassi got share in the land as described in the plaint. The death of Mor Dassi on 6.12.1989 was also admitted, however, the execution of the will in favour of the plaintiff by Smt. Mor Dassi was denied by asserting that the will was obtained by the plaintiff by exercising undue influence over Smt. Mor Dassi. Smt. Mor Dassi was patient and prior to the execution of the will, she was living with her daughter Bhima Devi. She was unable to speak. The plaintiff approached defendant No.2 and requested her that he wanted to get Mor Dassi checked up at Chandigarh and on that pretext he took the deceased along with him on 1.12.1989 and after few days, he returned back with the deceased to his house. It was further stated that the defendants came to know that the deceased has been brought back from Karsog and the plaintiff has got executed one will in his favour by exercising undue influence. It was further stated that defendants 1 to 3 were legal heirs of Mor Dassi being her daughters and no reason has been assigned in the will why they had been dis-inherited by deceased Mor Dassi. The learned trial court on the basis of the oral as well as documentary evidence has dismissed the suit on 30.6.1992. The plaintiff feeling aggrieved and dissatisfied with the judgment and decree dated 30.6.1992 passed by the Sub Judge preferred an appeal in the Court of learned District Judge, Mandi. The learned District Judge, Mandi dismissed the appeal on 16.2.1998. The present Regular Second Appeal has been filed against the judgment and decree dated 16.2.1998. The Regular Second Appeal was admitted on the following substantial questions of law: 1. Whether the will Ex.P-z/1 which is a registered will is validly executed? 3 2. Whether the provisions of section 63 of Indian Succession Act have been properly interpreted by the learned Courts below, while deciding the valid execution of the will? 3. Whether the documentary evidence has been properly recorded and interpreted by the Courts below? 4. Whether the documents Ex.P-z/1 the will itself has been properly appreciated by the learned courts below? Mr. K.D. Sood, Advocate had strenuously argued that the judgments and decrees passed by both the courts below are not sustainable in the eyes of law. He also contended that the will Ex.PW-2/A is validly executed by Mor Dassi. He further contended that the plaintiff is the cousin of Mor Dassi and had been looking after her. I have heard the learned counsel for the plaintiff and have also perused the record minutely. Since all these questions are inter-connected as such to avoid the repetition of discussion of evidence, the same are being taken up together. The will was executed on 2.12.1989. Smt. Mor Dassi died on 6.12.1989. She was suffering from cancer. She had also executed one will in favour of defendants No.1 to 3 before her death. The plaintiff has appeared as PW-1. He has deposed that Mor Dassi was his cousin sister and she was suffering from cancer. He got Mor Dassi treated for a period of two years before her death. He has admitted in his cross-examination that the land belonging to Mor Dassi is in possession of defendant No.4 for the last 8 years, who is brother of deceased Mor Dassi. It has come in the evidence that the plaintiff brought Mor Dassi to Karsog for execution of the will. Vide Ex.PW-2/A all movable and immovable property of the 4 deceased Mor Dassi had been bequeathed in favour of the plaintiff. The legal heirs have been excluded from the property i.e. daughters and real brother. PW-2 Mani Ram is one of the attesting witnesses of the will Ex.PW-2/A. He has deposed that the will in question was written by one Verma at the instance of Hari Singh. The contents of the will were read over to the deceased, who after admitting the same to be correct, put her thumb impression and he also signed the will as a witness. He has admitted that the deceased was ill at the time of execution of the will and the will was written outside the gate of Tehsil office, Karsog. He has admitted that daughters of deceased Mor Dassi also used to look after the deceased during her life time. PW-3 Hari Singh has deposed that the will was written as per the instructions of Mor Dassi, who was ill at the time of execution of the will and after the will was written the same was read over to the deceased, who after admitting its contents to be true put her thumb impression. He has further deposed that the will was written in the room of printing press belonging to Ami Chand and at that time Mor Dassi was sitting out side the room. There are material contradictions and discrepancies in the statements of PW-2 and PW-3. PW-2 has stated that the will in question has been written outside the gate of the Tehsil Office, Karsog, however, PW-3 has stated that the will was written in the room of the printing press and Mor Dassi was sitting outside the room. It is admitted by PW-2 and PW-3 that the deceased was suffering from cancer and she died after 4-5 days after the execution of the will. DW-1 Ram Singh and DW-4 Bhima Devi have stated that the deceased was taken from the house of Bhima by the plaintiff on the pretext that he will get her treated at Chandigarh, however, the deceased was brought to Karsog where the will was got executed. DW-1 and DW-4 have deposed that deceased Mor Dassi could not walk and talk properly 5 since she was suffering from cancer. Statements of DW-1 and DW-4 have been supported by DW-2 and DW-3. DW-3 has stated that deceased Mor Dassi was not capable of talking properly due to her illness. He has further stated that the deceased was having cordial relations with her daughters and the plaintiff never looked after the deceased during her life time. DW-2 Thakru has stated that on the date of execution of the will, he was also present at Karsog and he met deceased, who was seriously ill. He has deposed that the plaintiff brought the will and got affixed the thumb impression of deceased upon the will. DW-2 has further deposed that thereafter the deceased was taken to Tehsildar where he identified the deceased. The plaintiff has taken active part in the execution of the will. He had brought the deceased to Karsog. PW-3 Hari Singh has admitted in his cross-examination that Mor Dassi was brought by Gian Chand at his back. In fact, it is the plaintiff, who has taken Mor Dassi from the house of Bhima on 1.12.1989 on the pretext that he will get her treated at Chandigarh. He is the beneficiary of the will. He is the cousin of Mor Dassi. There is no reason why the natural heirs i.e. daughters and brothers have been disinherited from the property. There is sufficient evidence on record to suggest that Mor Dassi was being looked after by her daughters and she was staying in the house of her brother. The land is in possession of Ram Singh for the last 8 years. Mor Dassi was suffering from cancer. The will in question was executed on 2.12.1989. She died on 6.12.1989. It has come in the evidence that Mor Dassi had earlier executed a will in favour of the defendants, however, there is no reference of this will in Ex.PW-2/A that the earlier will stood extinguished by the new will. It has come in the evidence of PW-2 and PW-3 that Mor Dassi was sick. DWs have stated that she was sick and not in a position to walk. DW-2 has identified the deceased before the Sub Registrar. He 6 has specifically stated that she could not walk. DW-3 has also asserted that Mor Dassi was suffering from cancer. The other suspicious circumstance is that the will Ex.PW-2/A shows that the same was scribed by Hari Singh. He has appeared as PW-3. It has come in his evidence that the will in question in fact was scribed by Ami Chand Verma and he had instructed him to scribe the will. Though, as noticed above, in the will it has come that it was scribed by Hari Singh, however, he has admitted that he had not scribed it and that he had instructed Mr. Verma to scribe the will. The scribe of the will had not been produced. PW-2 Mani Ram has admitted that the will was scribed by one Sh. Verma on the instructions of Hari Singh. PW-3 Hari Singh has stated that the will was written in the room of printing press. However, PW-2 has stated that the will was scribed out side the gate of the Tehsil office. In view of the above discussion it can safely be assumed that the will dated 2.12.1989 is not a genuine will as the same is shrouded by suspicious circumstances. The plaintiff has failed to remove these suspicious circumstances. The suspicious circumstances can be summarized though: The defendants are the daughters and brother of the deceased. The plaintiff is cousin of the deceased. There are material contradictions the manner in which the will was scribed at Karsog. There are contradictions who in fact had scribed the will, whether it was Mr. Verma or Mr. Hari Singh. According to PW-2 the will was written outside the gate of the Tehsil Office and according to PW-3 it was written in the room of printing press by one Sh. Ami Chand Verma. There is sufficient evidence that the defendants were looking after the deceased. The plaintiff had taken the deceased from the house of Bhima at his back. The deceased was suffering from cancer. The will was executed on 2.12.1989 and the 7 deceased died on 6.12.1989. There are no cogent reasons why the natural heirs have been disinherited on the basis of Ex.PW-2/A. The testatrix died within 4 days after the execution of the will. She was neither in a position to walk nor speak due to her ailment. There is no question much less any substantial question of law involved in this Regular Second Appeal and this Court will not interfere with the concurrent findings of the facts recorded by the courts below. Consequently, there is no merit in the appeal and the same is dismissed. There shall be no order as to costs. 10.9.2008 (Rajiv Sharma ), J. *awasthi*