IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.115 of 2000 Date of Decision: 29th December, 2009 Kashmir Singh Appellant Versus Jagat Singh and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr. Anand Sharma, Advocate. For respondent No.1: Mr. Ashwani Sharma, Advocate. None for other respondents Sanjay Karol, J. (Oral) Shri Ghanya, and Sahanu were owners of land measuring 22 Bighas 5 Biswas to the extent of half share each comprising Khasra Nos. 36, 41, 42, 96, 98, 105, 116, 126, situate in Village Nalti, Pargana Sariun, Tehsil Ghumarwin, District Bilaspur, H.P. Shri Sahanu thus was owner to the extent of 11 Bighas and two Biswas. His wife pre-deceased him and he died issueless, as such, after his death the legal heirs of Shri Ghanya and Tusli, by way of succession, were entitled to inherit his estate. Shri Kashmir Singh son of Shri Ghanya propounded Will dated 9.4.1973 registered on 26.4.1973 Whether the reporters of Local Papers are allowed to see the Judgment? 2 executed by Shri Sahanu in his favour. Based on the same, the mutation in the revenue record was attested whereby share of Shri Sahanu was attested in favour of Shri Kashmir Singh. Being aggrieved of the same Shri Jagat Singh son of Shri Tulsi Ram, filed Civil Suit No.37/1 of 1987 against Shri Kashmir Singh and other legal heirs of Shri Ghanya as defendants No.1 to 4 and other legal heirs of Shri Tulsi Ram as proforma defendants No.5 and 6. The suit was primarily contested by Shri Kashmir Singh on the ground that genuine and registered Will was executed by Shri Sahanu on the basis of which mutation was rightly executed in his favour. Based on the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the plaintiff and proforma defendants have succeeded ½ share and defendants No.1 to 4 have succeeded the remaining ½ share out of the share of Sahanu? OPP. 2. Whether the registered Will dated 26.4.1973 by Sahanu in favour of the defendant No.1 is false and forged and the same is not binding upon the plaintiff? OPP. 3. Whether the mutation No.120 dated 15.5.1986 is also illegal? OPP. 4. Whether the plaintiff is entitled for joint possession in the alternative? OPP. 3 5. Whether the suit is not maintainable? OPD 6. Whether the plaintiff has no cause of action? OPD. 7. Whether the plaintiff is estopped to file the present suit by his conduct, act and deeds? OPD. 8. Whether this court has no jurisdiction to entertain and try the present suit? OPD. 9. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD. Opportunity to lead evidence was afforded to the parties. The trial Court held the plaintiff and proforma defendants as also contesting defendants entitled to succeed to the estate of Shri Sahanu in equal share. The will of Shri Sahanu, propounded by Shri Kashmir Singh was found to have been shrouded by suspicious circumstances and, therefore, not true and a genuine Will of Shri Sahanu. Consequently, mutation No.120 dated 15.5.1986 was held to be illegal and the plaintiff was held entitled to be in joint possession and the suit of the plaintiff for declaration was decreed to the effect that he alongwith proforma defendants are joint owners of the suit land to the extent of 5 bighas 11 biswas being half share out of the estate of Shri Sahanu. 4 Shri Kashmir Singh assailed the judgment and decree dated 17.1.1991 passed by Senior Sub Judge, Bilaspur, camp at Ghumarwin, H.P., by way of an appeal. The first Appellate Court, in terms of its judgment and decree dated 3.12.1999 dismissed Civil Appeal No.18 of 1991, by upholding the findings, judgment and decree passed by the trial Court. Thus Shri Kashmir Singh has filed the present Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908, assailing the concurrent findings of facts recorded by the Courts below. The appeal was admitted on the following substantial questions of law:- 1. Whether the Courts have completely misread the oral and documentary evidence on the record, more especially Ext.D1 copy of telegram and the death certificate which has also been exhibited as D-1. 2. Whether the learned Courts below were not required to take into consideration the fact that the whole idea behind execution of the Will was to interference with the normal line of succession? The Courts below found that propounder Shri Kashmir Singh has failed to prove that deceased Shri Sahanu had executed a valid Will dated 9.4.1973 in his favour. They found the same to be shrouded by three 5 suspicious circumstances, (i) the doubt with regard to the name of the person executing the Will, (ii) the recital of the Will with respect to propounder rendering services to be false and (iii) active part taken by the propounder and his close relatives in the execution of the Will. I have minutely examined the entire evidence and in my considered view the concurrent findings of fact recorded by the Courts below are correctly borne out from the record. The findings of fact are neither perverse nor are based on erroneous appreciation of evidence. Hence no substantial questions of law, at all arises for consideration. Be that as it may be, in order to satisfy judicial conscious, I have minutely gone through the evidence. Telegram Ext.D-1 simply records “your uncle” (mamma) “Sohan Singh has expired, reach Kishangarh”, and death certificate Ext.D-1 is only to the effect that Shri Sohan Singh son of Shri Goonja died at Kishangarh. The Will Ext.DA is executed by one Shri Sohan Singh. There is no proof to establish that testator Sohan Singh was in fact Sahanu son of Shri Goonja and brother of Shri Ghanya and Tulsi. It is not a pleaded case that Shri Sohan Singh was also called as Sahanu. From the statement of Shri Khusi Ram (RW-1) registration clerk in the office of Sub Registrar, Ghumarwin, it is apparent that the words “Urf Sahanu” at 6 Mark Y1 to Y3, in Will Ext.DA were inserted subsequently after the Will was executed and registered. The original Will produced from the office of the Sub Registrar, Ghumarwin establishes that words “Urf Sahanu” were not inserted in the record maintained in the office of the Sub Registrar. Had Shri Sahanu executed Will Ext.DA, then there was no need for Shri Kashmir Singh to have stealthily inserted the words “Urf Sahanu” later on. It is not his case that an application for correction of the record was moved or that the correction was carried out by the officials of the office of the Sub Registrar. Importantly, the words “Urf Sahanu” have been written in a different ink and distinct style of writing which only creates serious doubt with regard to the person having executed the Will. There is no documentary evidence to link the person having executed Ext.DA with Shri Sohan Singh son of Shri Goonja. The Will clearly records the reasons for divesting the other legal heirs from the estate of Shri Sahanu. In fact Shri Kashmir Singh (DW-1) has failed to even prima facie show the nature of the services rendered by him in favour of Shri Sahanu. It is not the proven case of the parties that Shri Sahanu was not having cordial relations with the legal heirs of Shri Tulsi Ram or Shri Ghanya. Shri Sahanu undisputedly was living at Kishangarh in Punjab. This evidently stands proved from the statement of the 7 witnesses examined by the contesting defendants. In the absence of any cogent, clear and convincing material the recital to the effect that Shri Kashmir Singh was rendering services to Shri Sahanu has been rightly held to be false and a suspicious circumstance against the propounder. There is no corroborative evidence on record to prove the statement of Shri Kashmir Singh that even after the death of Shri Sahanu he carried out the last rites or other religious ceremonies. Undisputedly the propounder has played an active role in the preparation of the Will. Shri Fateh Singh attesting witness to the Will is the real uncle of Shri Kashmir Singh and the second witness Shri Paras Ram has not been examined. Shri Amar Chand (DW-3) and Shri Kashmir Singh (DW-1) had brought Shri Paras Ram for the purposes of witnessing the Will. This cannot be disputed. The Will executed in the year 1973 did not see the light of the day till the time of mutation of the estate of Shri Sahanu in the name of Shri Kashmir Singh. Importantly, there is discrepancy in the statement of the witnesses even with regard to the disclosure of the Will after the death of Shri Sahanu. According to Shri Kashmir Singh, the Will was handed over to him by Shri Amar Chand on the basis of which he got the mutation attested, however, the document of mutation records the Will to have been handed over not by Shri Kashmir Singh but by 8 his wife and according to Shri Amar Chand (DW-3) the Will was actually handed over to Shri Kashmir Singh not by him but by his mother. In Kalyan Singh vs. Smt. Chhoti & Ors. AIR 1990 SC 396, the Apex Court has held as under: “A will is one of the most solemn documents known to law. The' executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities; of the case to reach a proper conclusion on the nature of the evidence adduced by the party. The Apex Court in Bharpur Singh and othes vs. Shamsher Singh, (2009) 3 SCC 687, has held as under:- “ It may be true that the Will was a registered one, but the same by itself would not mean that the statutory requirements of proving the Will need not be complied with. In terms of Section 63 9 (c), Succession Act, 1925 and Section 68, Evidence Act, 1872, the propounder of a will must prove its execution by examining one or more attesting witnesses. Where, however, the validity of the Will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator. The fact that the propounder took interest in execution of the will is one of the factors which should be taken into consideration for determination of due execution of the will. The propounder of the Will must prove: (i) that the Will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and (ii) when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of propounder. Keeping in view the nature of proof required for proving a Will, Section 90 of the Evidence Act, 1872 has no application. A Will must be proved in terms of the provisions of Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely, Sections 69 and 70 of the Indian Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is 10 not sufficient, as Section 68 of the Indian Evidence Act postulates that execution must be proved by at least one of the attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence. Suspicious circumstances like the following may be found in the execution of a Will: (i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature; (ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time; (iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason; (iv) The dispositions may not appear to be the result of the testator's free will and mind; (v) The propounder takes a prominent part in the execution of the Will; (vi) The testator used to sign blank papers; (vii) The Will did not see the light of the day for long, and (viii). Incorrect recitals of essential facts. The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the Will had been duly proved or not.” In the instant case no plausible explanation is borne out from the record to dispel the suspicious circumstances. Statement of defendants’ witnesses cannot 11 be said to reliable and convincing. It is true that interfering with the normal line of succession by itself would not be a ground to disbelieve the Will, but, however, in the instant case as has been noticed hereinabove, there are various attending circumstances on record to prove that the Will has not been executed by Shri Sahanu. Thus the Courts below have rightly come to the conclusion that propounder Shri Kashmir Singh has failed to dispel the suspicious circumstances and the Will Ext.DA cannot be said to have been validly executed by Shri Sahanu. The Courts below have appreciated the entire material in its correct perspective and there is no error in the findings returned by the Courts below. Substantial questions of law are answered accordingly. There is no illegality or irregularity and no ground for interference is made out. As such, the appeal is dismissed without any order as to costs. 29th December, 2009 (Sanjay Karol) (C) Judge.