IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 18 of 2001. Reserved on: 11.07.2008. Decided on: 04.08.2008. Shri Jalak Ram … … Appellant. Versus Shri Premi and Other. … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellant: Mr. Chandranarayana Singh, Advocate. For Respondents No.1 & 2: Mr. R.K. Gautam, Sr. Advocate with Ms. Radhika Gautam, Advocate. Rajiv Sharma, Judge: A challenge has been laid by medium of this regular second appeal to the judgment and decree passed by the learned District Judge, Kullu on 2.12.2000 in Civil Appeal No.123 of 1999. The brief facts necessary for the adjudication of this regular second appeal are that the respondent/plaintiff (hereinafter referred to as the plaintiff for convenience sake) has filed a suit for declaration with consequential relief of injunction and alternatively suit for possession. Whether reporters of local papers may be allowed to see the judgment? No. - 2 - The suit was contested by the appellant/defendant (hereinafter referred to as the defendant for convenience sake). The learned trial Court dismissed the suit on 30.10.1999. The plaintiff preferred an appeal before the learned District Judge, Kullu. The learned District Judge, Kullu allowed the appeal on 2.12.2000. This regular second appeal has been filed by the defendant against the judgment and decree dated 2.12.2000 passed by the learned District Judge, Kullu. The regular second appeal was admitted by this Court on 14.3.2001 on the following substantial questions of law:- 1. Whether the judgment and decree of the Court below is based on mis-reading and mis-appreciating the cogent and reliable documentary and oral evidence led by the appellant/defendant? 2. Whether the impugned judgment is liable to be set aside and quashed being based upon conjectures and surmises, against law and facts on record which are patently contrary to law? Mr. Chandranarayana Singh had strenuously argued that the judgment and decree passed by the learned District Judge, Kullu, dated 2.12.2000 is not sustainable in the eyes of law. He submitted that the judgment and decree passed by the learned trial Court dated 30.10.1999 be restored. On the other hand, Mr. R.K. Gautam, learned Senior Advocate has supported the judgment and decree dated 2.12.2000 passed by the learned District Judge, Kullu. I have heard the learned counsel for the parties and perused the record carefully. Since both the substantial questions of law are interconnected, they are taken up together for discussion. - 3 - The short question which falls for consideration on the basis of submissions of the learned counsel appearing on behalf of the parties is whether the Will dated 29.9.1993 (Ex.DW-3/A) has been validly executed in favour of defendant Shri Jalak Ram. PW-1 is Shri Premi (plaintiff). He has deposed that his grand father Shri Jindu never executed a Will in favour of the defendant. He has also stated that the suit property is jointly owned and possessed by the parties. PW-2 Shri Ranjit Singh had stated that the defendant was residing separately from Jindu and he was being looked after by the plaintiff. He has admitted that he belongs to District Kinnaur and had constructed a house about 2 ½ years back. PW- 3 Shri Shiv Ram is related to both the parties. He had deposed that plaintiff and proforma defendant No.2 were brought up by deceased Jindu and they only had rendered services to him. DW-1 Shri Jalak Ram has deposed that deceased Jindu was his father and he was living with him. He has stated that plaintiff and proforma defendant No.2 were living separately with their mother Smt. Jhali. He has further stated that in lieu of the services rendered by him, the deceased executed a Will in his favour about 1 ¼ years prior to his death at Kullu. He then stated that he performed the last rites of Shri Jindu. According to him, mutation Ex.D-1 was attested on the basis of the Will Ex.DW-3/A. DW-2 Shri Thakur Chand has deposed that defendant looked after and rendered services to deceased. After his death, the defendant was in possession of the suit property. DW-3 Shri Jindu Ram has deposed that on 23.9.1993, deceased Shri Jindu executed Will in favour of the defendant. The Will in question was scribed by Shri Naranjan Dass Mahant (DW-4). He further deposed that the Will was read over and explained to the deceased and after admitting the - 4 - same to be correct, he put his thumb impression on the Will. He then stated that Shri Naranjan Dass Mahant also put his signatures and the witnesses also put their signatures in the presence of deceased. Thereafter the Will was presented before the Naib Tehsildar and all the witnesses and the deceased appeared before him. He has admitted that he has remained witnesses in other Registries and a criminal case was pending against him since he had wrongly identified a person in some case. DW-4 is Shri Naranjan Dass Mahant, who has scribed the Will Ex.DW-3/A. He deposed that the Will was executed at the instance of Shri Jindu in the presence of the witnesses Gugru Ram and DW-3 Shri Jindu Ram. The Will was read over and explained to the deceased who admitted the same to be correct and thereafter put his thumb impression in the presence of witnesses. Thereafter the witnesses also put their signatures on the Will in the presence of the deceased. The entry qua the Will appears at Sr. No.872 dated 28.9.1993 in his register. He has specifically deposed that the eye sight of the deceased was good. DW-5 is the Registration Clerk. He has brought the original Will Ex./DW-3/A. He has deposed that the Will was registered in the office of Sub Registrar. It is clear from the statement of DW-1 that the Will was executed on 28.9.1993 by his father Jindu. The Will was executed in lieu of the services he rendered to the deceased and he also performed his last rites. DW-2 Shri Thakur Chand has admitted that last rites of deceased were performed by the defendant and he was also present at the time of last rites of the deceased. DW-3 has admitted that the Will was executed by the deceased on 23.9.1993. The Will was written by Shri - 5 - Naranjan Dass Mahant at the instance of the deceased. He has stated that the witnesses also put their signatures in the presence of the deceased. According to him the deceased was in good mental health and his eye sight was normal. The learned first Appellate Court has disbelieved the statement of DW-3 only on the ground that he belonged to a village which is at a distance of about 20-22 Kms. from the village of the testator, Shri Jindu and he had been a witness to some registries earlier also and that a criminal case is pending against him. The learned first appellate Court has erred in law by discarding the statement of DW-3 Shri Jindu Ram. His statement could not be disbelieved only on the ground that he earlier attested few registries and a criminal case was pending against him and he belongs to a distant village. His version has duly been corroborated by DW-4 Shri Naranjan Dass Mahant who had scribed the Will in question. He has categorically admitted that the entry of the Will appears at Sr. No.872, dated 28.9.1993 in his register. The Will was produced before the Sub Registrar in accordance with law and the same was registered. DW-1 has stated that the witnesses also put their signatures on the Will in the presence of the deceased. He was in good health according to DW-4. DW-5 has produced the original Will Ex.DW-3/A. In view of this overwhelming evidence, the only conclusion which can be drawn is that the Will Ex. DW-3/A dated 28.9.1993 was executed in accordance with law. There are no suspicious circumstances as argued by Mr. R.K. Gautam. The original Will has been produced by the DW-5 (Shri Om Parkash) in the Court. Mr. R.K. Gautam also contended that statement of DW-4 Shri Naranjan Dass Mahant does not inspire confidence. If the statement of DW-4 Shri Naranjan Dass Mahant is read in totality, it inspires confidence - 6 - and the same has wrongly been discarded by the first appellate Court. The defendant is the son of deceased Jindu. The execution of the Will could not be disbelieved only on the ground that the deceased has not given any land to his grand sons. Consequently, in view of the observations made hereinabove, it is held that the Will Ex.DW-3/A dated 28.9.1993 has been validly executed. The findings recorded by the first appellate Court are set aside. Accordingly, the regular second appeal is allowed. The judgment and decree passed by the learned first appellate Court dated 2.12.2000 is set aside. The judgment and decree passed by the learned trial Court in Civil Suit No.139 of 1998(96) is restored. The CMP, if any, also stands disposed of. No costs. August 04, 2008. (Rajiv Sharma) (sck). Judge.