IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 255 of 1991 Date of decision: 23.2.2011 Kuldip Singh ….. Appellant. Vs. Shanti Devi and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Ramakant Sharma, Advocate with Mr. Malay Kaushal, Advocate. For the Respondents : Mr. Balwant Singh, vice Mr. K.D. Sood, Advocate, for respondents No.1,4,(b) to 4(f), 5a) to 5(g) and 13. Kuldip Singh, J(Oral). This appeal has been directed against judgment, decree dated 26.4.1991 passed by learned District Judge, Chamba, as Addl. District Judge, Una in Civil Appeal No.10/90/87, affirming the judgment, decree dated 28.11.1987 passed by learned Sub Judge (II) Una in Civil Suit No.215 of 1971 & R.B.T No.213/78. Some of the original plaintiffs and defendants have died, therefore, in this judgment the parties are referred to as plaintiffs and defendants. 2. The brief facts of the case are that plaintiffs had filed a suit for possession of land described in the plaint. The suit was Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… basically against defendant No.1 Joginder Singh and others on the allegation that Will Ex.D1 propounded by Joginder Singh was forged and fictitious and Anar Devi had never executed any Will in favour of Joginder Singh. The plaintiffs claimed that they alongwith defendants No.2 to 8 are the legal heirs of Anar Devi, therefore, entitled to succeed to the disputed land under the normal course of succession. After sanctioning of mutation wrongly and illegally in favour of Joginder Singh, he had forcibly and unlawfully taken possession of the suit land, hence suit for possession in favour of plaintiffs and defendants No.2 to 8. The defendants No.2 to 8 were later on arrayed as plaintiffs. 3. The suit was contested by Joginder Singh. It was admitted that suit land lastly belonged to Anar Devi. Joginder Singh based his claim on the basis of Will dated 5.12.1960 allegedly executed by Anar Devi in his favour to the extent of 2/3rd share. The mutation on the basis of Will had already been sanctioned. The prayer was made for dismissal of the suit. 4. On the pleadings of the parties the following issues were framed:- 1. Whether the plaintiffs and defendants No.2 to 8 (now arrayed as plaintiffs), are the legal heirs of Smt. Anar Devi? OPP 2. Whether the Will alleged to be executed in favour of defendant is valid?OPD 3. Relief. The issue No.1 was answered in affirmative and issue No.2 in negative and suit was decreed by learned Sub Judge on 28.11.1987. Joginder Singh filed appeal against judgment, decree …3… dated 28.11.1987 which was dismissed on 26.4.1991, hence second appeal by Joginder Singh who died during the pendency of second appeal and his legal representative was brought on record. 5. The appeal was admitted on 31.7.1992 without reference to any substantial question of law. However, on the basis of submissions made on either side the following substantial question of law emerges for consideration:- Whether the Courts below have misread and misinterpreted the evidence regarding execution of Will dated 5.12.1960 Ex.D1 by Anar Devi in favour of Joginder Singh. 6. I have heard the learned counsel for the parties on the aforesaid substantial question of law and have also gone through the record. The learned counsel for the appellant has submitted that two Courts below have erred in returning the findings that Anar Devi had not executed the Will Ex.D1 in favour of Joginder Singh. It has been submitted that the two Courts below have misread and misinterpreted the evidence on record regarding execution of Will Ex.D1. On the contrary the learned counsel appearing for the respondents has submitted that the two Courts below have rightly appreciated the material on record in returning the findings that Anar Devi had not executed any Will in favour of Joginder Singh. The two Courts below have concurrently recorded a finding of fact regarding non-execution of Will Ex.D-1. The learned counsel for the respondents has prayed for dismissal of the appeal. …4… 7. The execution of Hindu Will is required to be in accordance with Section 63 of the Indian Succession Act, 1925 which reads as follow:- “Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:- (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” 8. The point involved in the appeal is very short. The propounder of the Will is required to prove the execution of Will. The propounder of the Will is also required to explain suspicious circumstances, if any, connected with the execution of the Will. DW-1 Bali Ram is the scribe of the Will. Ex.D1 dated 5.12.1960. He has stated that when he went there she ( Anar Devi) was sitting inside. He had written the Will and thereafter called her out side. He was called by Joginder Singh. He had written as per the dictation of Joginder, papers and pen were also provided by Joginder. He …5… was not aware whether Anar Devi could see and hear. She was about 70 years and weak. 9. DW-2 Dera Singh has stated that Will was scribed by Bali Ram. It was not read over to Anar Devi and to him. Anar Devi had already put her thumb mark before he reached there. DW-3 Kishan Singh has stated that he is a witness to the Will. The Will was read over to Anar Devi. She put her thumb mark after admitting the contents of the Will. DW-2 Dera Singh and Ajmer Singh were also present there. Anar Devi put her thumb mark in presence of Dera Singh. The statement of DW-3 Kishan Singh is in contradiction to statement of DW-2 Dera Singh on material points, who has stated that the Will was not read over to him and to Anar Devi. He has also stated that when he reached there Anar Devi had already put her thumb mark on the Will. He has not stated that Anar Devi had put her thumb mark in his presence. The statement of DW-3 Kishan Singh that Anar Devi had put her thumb mark in his presence and Dera Singh does not inspire confidence and cannot be accepted. 10. DW-4 Milap Singh has stated that Will Ex.D1 does not bear his thumb mark. He does not know that Dera Singh and Kishan Singh signed the Will. He had not seen Ajmer Singh at that time. In any case Ajmer Singh has not been examined. DW-6 Joginder Singh has stated that Will Ex.D1 was executed in the year 1962. The cumulative effect of the evidence led by propounder of the Will in support of execution of Will leads to only inference that the propounder has failed to prove due execution of Will Ex.D1 in accordance with Section 63 of the Indian succession Act. Joginder …6… Singh himself has stated that Will Ex.D1 was executed in the year 1962 whereas as per his pleaded case the Will was executed on 5.12.1960. DW-1 Bali Ram scribe of the Will has clearly stated that the Will was written on the dictation of Joginder Singh who provided the papers and pen. Anar Devi was sitting inside the room. She was called later on out side. She was weak. According to DW-2 Dera Singh, the Will was not thumb marked by Anar Devi in his presence. DW-4 Milap Singh has stated that Will is not thumb marked by him. The statement of DW-3 Kishan Singh that Will was thumb marked by Anar Devi in his presence and Dera Singh and he also thumb marked the Will is not believable in view of statement of DW-2 Dera Singh. Thus, seen from any angle the propounder has failed to prove due execution of Will Ex.D-1. 11. The trial Court has returned the findings on issue No.1 in favour of plaintiffs and on issue No.2 against defendants. It is not the case of the defendants that in absence of Will they will get the property of Anar Devi nor it has been established that plaintiffs and defendants No.2 to 8 are not entitled to get the property of Anar Devi after her death. On the contrary plaintiffs and defendants No.2 to 8 have proved that they being heirs of Anar Devi are entitled to the property of Anar Devi after her death. The appellant has failed to prove that the two Courts below have misconstrued and misinterpreted the evidence regarding execution of the Will ExD1. The appellant has also failed to establish that the Will Ex.D1 was executed in accordance with Section 63 of the Indian succession Act. …7… The aforesaid substantial question of law is decided against the appellant. There is no merit in the appeal. 12. No other point was urged. 13. The result of the above discussion, appeal fails and is accordingly dismissed with no order as to costs. February 23, 2011 ( Kuldip Singh ) (sks) Judge.