IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 398/1998 Reserved on: 3.3.2009 Decided on:18.3.2009 Shiv Singh. …Appellant. Versus Dhani Ram and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the Appellant : Mr. Janesh Gupta, Advocate. For the Respondents : Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 12.5.1998 passed by the District Judge, Solan in Civil Appeal No. 63-S/13 of 1997. 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 suit against the respondents- defendants (hereinafter referred to as ‘the defendants’ for convenience sake) seeking relief of declaration to the effect that mutation Nos. 60,64 and 105 sanctioned in favour of defendant Dhani Ram on the basis of will 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 Ex.DW-2/A was illegal hence void ab initio and for consequential relief of permanent injunction to restrain the defendants from causing interference in the suit land. Smt. Leela Wati widow of Sh. Sohan Lal was stated near relation being his aunt. She died on 10.12.1987. She executed a will on 27.10.1987. The same was registered on 3.11.1987. It was further stated that the will in question was result of fraud, mis-representation and undue influence. The suit was contested by the defendants by filing a written statement. No replication was filed by the plaintiff to the amended written statement. The trial court decreed the suit on 30.8.1997. The defendants preferred an appeal before the learned District Judge, Solan. The appeal was allowed by the learned District Judge on 12.5.1998. This Regular Second Appeal was admitted on the following substantial questions of law: 1. Whether the will Ex.DW-2/A could be held to be proved when one of the attesting witness of the will PW-4, Shri Chaman Lal denied the due execution and attestation of the same? 2. Whether merely the fact that the will was registered was sufficient to prove the factum of due attestation and execution of the will, when there were material contradictions in the statements of the concerned witnesses. Was not it essential to produce the Sub- Registrar in such situation? 3. Whether the defendant failed to dispel all suspicious circumstances surrounding the execution and attestation of the will, particularly when the propounder took active part in the same? 4. Whether the judgment of the lower appellate court is based on misreading of material evidence, mis- application of correct law thus vitiating the same? Mr. Janesh Gupta, Advocate has strenuously argued that the judgment and decree passed by the learned District Judge, Solan are 3 unsustainable. He has strenuously contended that the propounder was able to dispel the suspicious circumstances surrounding the execution and attestation of the will. His further submission is that mere registration of the will itself was not sufficient to dispel the suspicious circumstances surrounding the execution of the will. Mr. G.D. Verma, Senior Advocate has supported the judgment and decree passed by the learned District Judge, Solan. I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. The will in question Ex.DW-2/A was stated to have been executed by Smt. Leela Wati widow of Sh. Sohan Lal on 27.10.1987 at Kasauli. This was scribed by one Sh. Ghanshyam Dutt Sharma. It was scribed in the presence of witnesses Lok Nath Attri and Chaman Lal. Sh. Chaman Lal was examined by the plaintiff as PW-4. The will was registered on 3.11.1987 before the Sub Registrar, Kasauli. The mutations No. 60, 64 and 105 were attested on the basis of the will Ex.DW-2/A. The plaintiff has appeared as PW-1. He has examined PW-2 Baldev Singh, PW-3 Asha Ram and other marginal witness Chaman Lal (PW-4). The defendant has appeared as DW-1 he has stated that Smt. Leela Wati was related to him being his father’s sister. She was looked after by him and his family. The will was executed by her in the presence of witnesses Lok Nath Attri and Chaman Lal. The same was registered on 3.11.1987. He has denied that the signatures of Chaman Lal PW-4 were procured earlier on the paper and that the will was not executed in his presence. DW-2 Lok Nath is a marginal witness. 4 The scribe of the will Sh. Ghanshyam Dutt Sharma has not been produced as a witness. Sh. Chaman Lal, marginal witness has been examined by the plaintiff as PW-4. He has deposed that neither Smt. Leela Wati nor Lok Nath appended their signatures on the document nor was he apprised of the contents. The trial court had come to a conclusion on the basis of cross-examination of this witness that he was not present on 27.10.1987 when originally will in question was executed. It is not proved from the statement of DW-2 that he appended his signatures in the presence of testatrix. It is also not proved that PW-4 Chaman Lal was present at the time of the execution of the will. The attestation of will is required to be proved by the attesting witnesses admitting the attestation and also by further proving that they signed the document in the presence of the testator as per section 63 (3) of the Succession Act. The will in question was executed by Smt. Leela Wati in the presence of Dhani Ram. PW-4 Chaman Lal was asked by defendant Dhani Ram to append his signatures on the will. It shows that the propounder has taken keen interest in the attestation of the will. The defendants have not produced any witness from the office of the Sub Registrar. The mere fact that the will was registered is not sufficient to prove its genuineness. Their Lordships of the Hon’ble Supreme Court in Rani Purnima Debi and another versus Kumar Khagendra Narayan Deb and another, 1962 SC 567 have held as under: “23. There is no doubt that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was 5 made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration Will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. Law reports are full of cases in which registered Wills have not been acted upon : (see, for example, Vellaswamy Servai v. Sivaraman Servai, ILR 8 Rang 179: (AIR 1930 PC 24), Surendra Nath v. Jnanendra Nath, AIR 1932 Cal 574 and Girja Datt Singh v. Gangotri Datt Singh, (S) AIR 1955 SC 346. Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a Will; though the fact that there has been registration would be an important circumstance in favour of the will being genuine if the evidence as to registration establishes that the testator admitted the execution of the will after knowing that it was a Will the execution of which he was admitting. The learned District Judge has given undue weightage to the fact that the plaintiff was not in position to serve Smt. Leela Wati since he was residing at Shimla. In case the statements of DW-2 and PW-4 are read in totality, they suggest that PW-4 was not present at the time of the attestation of the will. The defendants have not examined the scribe of the 6 will Sh. Ghanshyam Dutt Sharma. PW-4 has supported the version of the plaintiff. The defendants have failed to bring their case within the ambit of section 63 of the Succession Act. In order to dispel the suspicious circumstances in this case it was necessary for the defendants to examine some officer/official from the office of the Sub Registrar, Kasauli. It has not been proved that the contents of the will in question were read over and explained by the Sub Registrar to the testatrix before registering the will. The propounder has taken keen interest in the attestation of the will. In these circumstances, defendant Dhani Ram has failed to remove suspicious circumstances surrounding the execution of the will Ex.DW- 2/A. The Apex Court in the latest pronouncement in Lalitaben Jayantilal Popat versus Pragnaben Jamnadas Kataria and others, 2009 (1) Scale 328 has held that section 68 of the Evidence Act provide that the propounder must prove execution and attestation of the will by examining at least one of the attesting witnesses. In the present case the defendant though has produced DW-2 to prove the attestation and execution of the will, however, the statement made by DW-2 has been shattered by the statement of PW-4 Chaman Lal, who was also one of the marginal witnesses. Their Lordships have also held that both the attesting witnesses have either to attest the will in the presence of each other or the testator had acknowledged his signatures in the presence of other witnesses. In this case, this requirement is also missing due to diametrical opposite statement given by DW-2 and PW-4 attesting witnesses of the execution of the will. Their Lordships have further held that the execution of will must be held to have been proved not only by proving the signature of the executor but it should be free from any suspicious circumstances. The court may also take aid of the presumpting evidence also. 7 Accordingly, the Regular Second Appeal is allowed. The judgment and decree dated 12.5.1998 passed by the learned District Judge, Solan are set aside and the judgment and decree dated 30.8.1997 passed by the Senior Sub Judge, Solan are restored. There shall, however, be no order as to costs. 18.3. 2009 (Rajiv Sharma ), J. *awasthi*