IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA. No.: 78 of 2011. Reserved on: 28.06.2011. Decided on: 12.07.2011. ______________________________________________ Bihari Lal. … Appellant. Versus Smt. Brahami Devi and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellant : Mr. H.K. Bhardwaj, Advocate. For the Respondents : Mr. Bimal Gupta, Advocate. Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Una in Civil Appeal No.52/2009 and Civil Appeal No. RBT- 45/10/09, dated 9.12.2010. 2. Material facts necessary for the adjudication of this regular second appeal are that the predecessor-in-interest of respondents, Shri Bhagat Ram (hereinafter referred to as”the 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - plaintiff” for convenience sake) instituted a suit for declaration to the effect that on the basis of a valid registered Will, dated 11.1.1984, Ex.PW-4/A, executed by Khushi Ram alias Khushia in his favour, he is in exclusive owner in possession of the suit land as detailed in the plaint, situate at Mohal Nagnoli, Har Mauja Nagnoli, Tehsil and District Una and mutation No.105, dated 24.6.1998 attested on the basis of Will on 1.6.1997 allegedly executed by Khushi Ram in favour of the defendant was illegal, null and void and not binding upon the plaintiff, with consequential relief of permanent prohibitory injunction restraining the appellant/ defendant (hereinafter referred to as “the defendant” for convenience sake) from interfering in any manner with the suit land. 3. The suit was contested by the defendant by filing written statement. He has admitted that the suit land was earlier owned by Khushi Ram. He has averred that after the death of Khushi Ram, he became owner of the suit land. Khushi Ram died issueless on 6.7.1997. According to him, Will dated 11.1.1984 was forged, fabricated, concocted and manipulated document. He has rendered services and looked after Khushi Ram. Khushi Ram, out of love and affection and in lieu of services rendered executed Will Ex.DW-3/A in his favour, which was registered on 28.1.1998 and mutation No.105 on the basis of Will dated 1.6.1997 was sanctioned in his favour in the presence of the plaintiff. - 3 - 4. Replication was filed by the plaintiff. Issues were framed by the trial Court on 17.11.1999. The learned Civil Judge (Junior Division), Court No.1, Una dismissed the suit on 27.6.2009 by holding that neither the plaintiff has proved the Will dated 11.1.1984, Ex.PW-4/A nor the defendant has proved the Will Ex.DW-3/A, dated 1.6.1997. Thereafter the plaintiff and defendant preferred appeals challenging the judgment, dated 27.6.2009 before the learned Additional District Judge, Una. The appeal preferred by the defendant was registered as Civil Appeal No.52/ 2009 and the appeal preferred by the plaintiff was registered as Civil Appeal No. RBT-45/10/09. The learned Additional District Judge, Una allowed plaintiff’s appeal No.RBT-45/10/09 vide judgment dated 9.12.2010 by holding that the Will was validly executed by Khushi Ram in favour of the plaintiff. He dismissed the appeal preferred by defendant by holding that the Will Ex. DW-3/A has not been validly executed. Hence, this regular second appeal. 5. Plaintiff, Bhagat Ram has died during the pendency of suit before the learned Sub Judge (Junior Division), Una and his legal representatives were brought on record. According to the decree passed by learned Additional District Judge, plaintiff was declared to be exclusive owner with possession of the suit property. Mutation No.105 attested on the basis of Will dated 1.6.1997 was held to be wrong and illegal. Defendant was - 4 - restrained by a decree of perpetual injunction from interfering in the peaceful ownership and possession of the plaintiff over the suit land and changing the nature, raising construction over it, cutting and removing the trees standing therein as well as alienating the suit land in any manner whatsoever. 6. The appeal was admitted by this Court on 16.3.2011 on the substantial questions of law No.1 to 3, framed at page No.7 of the paper book. 7. Mr. H.K. Bhardwaj, learned counsel for the defendant on the basis of substantial questions of law has vehemently argued that the Will dated 11.1.1984 was not validly executed. According to him, Will dated 1.6.1997 Ex.DW-3/A has been validly executed. 8. Mr. Bimal Gupta, learned counsel for the plaintiff has supported the judgment and decree passed by the learned first appellate court. 9. I have heard the learned counsel for the parties and gone through the pleadings carefully. 10. Since all the substantial questions of law are interlinked and interconnected, they are taken up together for determination to avoid repetition of discussion of evidence. 11. There are two Wills in dispute. First Will is executed by Khushi Ram in favour of plaintiff on 11.1.1984 vide Ex.PW-4/A. The second Will was allegedly executed on 1.6.1997 vide Ex.DW- 3/A. - 5 - 12. PW-1, Brahmi Devi had deposed that Khushi Ram was her Jeth. He used to cultivate the land. He became blind. Khushi Ram was residing with them for the last 20-22 years. Her husband started cultivating the land in suit. Khushi Ram out of love and affection executed the Will in favour of Bhagat Ram. They went to Haridwar. The defendant never remained in occupation of the suit land or cultivated the same. She denied that Khushi Ram has executed the Will in favour of the defendant. 13. Pritam Chand (PW-2) and Krishan Dev (PW-7) have supported the plaintiff. According to them, Khushi Ram was residing with the plaintiff. PW-3, Hari Dass has brought the record of Civil Suit No.182 of 1988, decided on 29.6.1993. Ex.PW-3/A is the copy of plaint, Ex.PW-3/B is the copy of amended plaint and Ex.PW-3/C is the statement made by Khushi Ram on 18.3.1991. 14. PW-4, Jugal Kishore has brought the record of Will dated 11.1.1984 (Ex.PW-4/A) and the General Power of Attorney dated 22.5.1987 (Ex.PW-4/B). Ex.PW-4/A was scribed by Vijay Puri (PW-5). It has been entered at Sr. No.23 on 11.1.1984. It was made in favour of Bhagat Ram. He has scribed the Will at the instance of Khushi Ram. He has read over the contents of the same to the testator. The testator thumb marked the Will after admitting its contents to be correct in the presence of marginal witnesses Shri Dal Singh, Namberdar and Subhash Chand, PW-8. He has also admitted in his cross-examination that at Sr. No.24, - 6 - dated 11.1.1984, a mention has been made with regard to the Will executed by Gulabu, real brother of Khushi Ram in favour of the plaintiff vide Ex.D-1. 15. PW-8, Subhash Chand is the marginal witness of Will Ex.PW-4/A. According to him, Khushi Ram has executed the Will of his own free will and volition on 11.1.1984. He was in sound disposing mind and Shri Dal Singh, Namberdar was also present, which was scribed by PW-5. The contents of the Will were read over and explained to the testator. He thumb marked the same in presence of the marginal witnesses after admitting its contents to be correct. Thereafter, they appeared before the Sub-Registrar and got the Will registered. Khushi Ram was residing in the house of the plaintiff. The papers on which the Will was scribed were purchased by Khushi Ram. At the time when the Will was written, the testator, Document Writer, he and Namberdar were present. 16. Plaintiff has also placed on record Ex.P-1, Ex.P-2, Ex.PW-4/A, photo copy of power of attorney Ex.PW-4/B and copy of missal hakiat for the year 1991-92, according to which Khushi Ram was owner with possession of the suit land. However, in the remarks column of this document, a note has been given in red ink that mutation No.105 of inheritance after the death of Khushi Ram has been sanctioned on 24.6.1998 in favour of defendant (Bihari Lal). - 7 - 17. Will Ex.PW-4/A was scribed by Vikay Puri (PW-5) and Subhash Chand and Dal Singh were the marginal witnesses to the same. According to Vijay Puri, he has scribed the Will and has read over and explained the contents of Will to Khushi Ram, who after admitting the contents of the same to be correct, thumb marked it in presence of the witnesses. Similar is the statement of PW-8, Subhash Chand, who was the marginal witness of the Will. According to Vijay Puri and Subhash Chand, the Will has been executed by Khushi Ram of his free will and volition. It was duly registered with the Sub-Registrar. 18. Mr. H.K. Bhardwaj, learned counsel for the defendant has vehemently argued that the Will dated 11.1.1984 is shrouded with suspicious circumstances since according to him, Khushi Ram was blind at the time when the Will was executed. However, suffice to say that the Will relied upon by the defendant dated 1.6.1997 Ex.DW-3/A has also been executed by the same person. Consequently, it is held that the learned first appellate Court has come to the right conclusion that the Will Ex.PW-4/A was validly executed by Khushi Ram in favour of the plaintiff. 19. Now so far as the Will Ex.DW-3/A, dated 1.6.1997 is concerned, the same was scribed by PW-3 Anil Kumar Jaswal. According to him, the Will was executed on 1.6.1997. It was scribed at the behest of Khushi Ram in presence of the witnesses, namely, Biru Ram, Namberdar and Sher Singh. He has read over - 8 - and explained the contents of the same to the testator. Thereafter, Khushi Ram thumb marked the Will in presence of the witnesses after admitting the same to be true. Thereafter the witnesses also thumb marked/signed it in the presence of testator. The entry was made to this effect in his register. He also deposed that he has also signed the Will as a witness. Ex.DW-3/B is the extract of his register. However, Anil Kumar Jaswal has deposed that Khushi Ram was not blind. Gurmail Singh, DW-4 has identified the signatures of Biru Ram on the original Will Ex.DW- 3/A. He deposed that Biru Ram was alive. Biru Ram, Namberdar and Sher Singh were the marginal witnesses of Will Ex.DW-3/A. Sher Singh has died due to which he could not be examined by the defendant. Biru Ram was cited as a witness. Summons was sent to him by the learned trial Court to appear as a witness on 21.8.2006. The summons was received by him and he signed the same as a token of its receipt. However, he did not appear in the Court. In these circumstances, it was open to the defendant to examine Biru Ram by getting a Local Commissioner appointed for recording his statement. 20. DW-7 Amar Nath has deposed that he knew Biru Ram, Namberdar, but he was unable to move around. He has lost his senses for the last about 1½-2 years. He has seen him (Biru Ram) signing and writing. He has identified the signatures of Biru Ram on Ex.DW-3/A. - 9 - 21. Thus, it is evident that the defendant has not proved the Will Ex.DW-3/A in accordance with law. One of the marginal witnesses, Shri Sher Singh has died. Though the other marginal witness, Biru Ram was alive, but his statement was not got recorded by appointing a Local Commissioner. 22. Mr. H.K. Bhardwaj, learned counsel for the defendant has argued that in fact Anil Kumar Jaswal, DW-3 was also witness to the Will, Ex.DW-3/A. However, his statement cannot be accepted and has rightly been discarded by the learned Additional District Judge, Una. Under the caption “GVAH” only the names of Sher Singh and Biru Ram have been mentioned. The signatures of DW-3, Anil Kumar Jaswal on Ex.DW-3/A are only as its scribe. He has not been cited as a witness before the Sub-Registrar at the time of registration of the Will on 28.1.1998. Thus, the Will, allegedly executed on 1.6.1997, Ex.DW-3/A is shrouded with suspicions and the incriminating circumstances have not been explained by the defendant. 23. Their Lordships of the Hon’ble Supreme Court in Babu Singh and others versus Ram Sahai alias Ram Singh, (2008) 14 SCC 754 have held that when genuineness of a will is in question, apart from execution and attestation of will, it is also the duty of a person seeking declaration about the validity of the will to dispel the surrounding suspicious circumstances existing, if any. Their Lordships have further held that in terms of section 68 of the - 10 - Evidence Act, although it is not necessary to call more than one attesting witness to prove due execution of a will but that would not mean that an attested document shall be proved by the evidence of one attesting witness only and two or more attesting witnesses need not be examined at all. Their Lordships have further held that section 68 envisages the necessity of more evidence than mere attestation, as the words “at least” have been used therein. Their Lordships have further held that the will is to be attested by two witnesses in terms of section 63 (1) (c) of the Succession Act, 1925. Their Lordships have further held that not only the execution of will be proved, but actual execution must also be attested by at least two witnesses and the attestation of will in question must be in conformity with the provisions of section 3 of the Transfer of Property Act. Their Lordships have further held that ‘attestation’ and ‘execution’ connote two different meanings. Their Lordships have held as under: “12. Indisputably a Will is to be attested by two witnesses in terms of Section 68 of the Indian Evidence Act (Act). Indisputably, the requirement of Section 63(1)(c) of the Indian Succession Act is required for to be complied with for proving a writ. Section 68 of the Act mandates proof by attesting witnesses of not merely of execution but also attestation by two witnesses. That is to say, not only the execution of Will must be proved but actually execution must be attested by at least two witnesses. Attestation must of execution of Will be in conformity - 11 - with the provisions of Section 3 of the Transfer of Property Act. 13. 'Attestation' and 'execution' connote two different meanings. Some documents do not require attestation. Some documents are required by law to be attested. 14. In terms of Section 68 of the Act, although it is not necessary to call more than one attesting witness to prove due execution of a Will but that would not mean that an attested document shall be proved by the evidence of one attesting witness only and two or more attesting witnesses need not be examined at all. Section 68 of the Act lays down the mode of proof. It envisages the necessity of more evidence than mere attestation as the words 'at least' have been used therein. When genuineness of a Will is in question, apart from execution and attestation of Will, it is also the duty of a person seeking declaration about the validity of the Will to dispel the surrounding suspicious circumstances existing if any. Thus, in addition to proving the execution of the Will by examining the attesting witnesses, the propounder is also required to lead evidence to explain the surrounding suspicious circumstances, if any. Proof of execution of the Will would, inter alia, depend thereupon. 15. The Court, while granting probate of the will, must take into consideration all relevant factors. It must be found that the will was product of a free will. The testator must have full knowledge and understanding as regards the contents thereof. For the said purpose, the background facts may also be taken note of. Where, however, a plea of undue influence was taken, the onus wherefor would be on the objector and not on the offender. {See Savithri & - 12 - Ors. v. Karthyayani Amma & Ors. [JT (2007) 12 SC 248]}” 24. Their Lordships of the Hon’ble Supreme Court in Lalitaben Jayantilal Popat versus Pragnaben Jamnadas kataria and others, (2008) 15 SCC 365 have held that section 63 (c) of Succession Act, 1925 provides that attestation of will by two or more witness is mandatory. Their Lordships have further held that the will has to be proved not only by proving the signature of the executor but it should be found to be free from any suspicious circumstances. Their Lordships have held as under: “11. The law in regard to proof of a valid Will is now well settled. It has to be proved not only by proving the signature of the executor but it should be found to be free from any suspicious circumstances. Section 63(c) of the Indian Succession Act reads as under: "Section 63.--Execution of unprivileged Wills -- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1 [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules :- (a) and (b) ... (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 seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the - 13 - 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." 12. Indisputably, the said provision is mandatory in nature. A Will is required to be attested by two or more witnesses. Section 68 of the Evidence Act provides that the propounder must prove execution and attestation of the Will by examining at least one of the attesting witnesses. What is meant by the word `attestation' is defined in Section 3 of the Transfer of Property Act which reads as under : Section 3.--Interpretation-clause--In this Act, unless there is something repugnant in the subject or context,- XXX XXX XXX "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary. 20. Whether a Will is surrounded by suspicious circumstances or not is essentially a question of fact. - 14 - We have noticed hereinbefore that there was a large number of suspicious circumstances in the instant case. We have also pointed out that suspicious circumstances appear on the face of the Will. Inferences of suspicious circumstances must be drawn having regard to the evidence of Ranjit Singh. Even the statutory requirements for proof of the Will have not been complied with. It is a trite law that execution of a Will must be held to have been proved not only when the statutory requirements for proving the Will are satisfied but the Will is also found to be ordinarily free from suspicious circumstances. When such evidences are brought on record, the Court may take aid of the presumptive evidences also." 25. Their Lordships of the Hon’ble Supreme Court in K. Laxmanan versus Thekkayil Padmini and others, (2009) 1 SCC 354 have reiterated that onus to prove the will lies on the propounder. Their Lordships have further held that even where plea of suspicious circumstances is not raised but circumstances give rise to doubt, the propounder must satisfy the conscience of the court by removing such doubt. Their Lordships have held as under: “18. It is only as against the judgment and findings that the items of property covered by Ext. B2 and B3 are available for division that the second appeal was preferred by the fifth defendant in the High Court of Kerala. Therefore, the properties covered by Ext. B1 and B4 namely items 1 to 3, 13 and 14 are no longer in dispute and the conclusions arrived at by the first appellate court that the said items are not available for division are final and binding on the parties. - 15 - 19.What is in dispute and is open to further litigation are only the properties covered by Ext. B2 and B3 which were held by both the appellate courts to be available for division. Since we are concerned with the legality of execution of Deed of Will and Deed of Gift, Section 68 of the Act would have some relevance, which reads as follows:- "68. Proof of execution of document required by law to be attested. - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." Strong reliance was placed on this provision also by the learned counsel appearing for the parties. A bare reading of the aforesaid provision will make it crystal clear that so far as a Deed of Will is concerned, the position in law is no longer in doubt for the onus of proving the Will is on the propounder. The propounder has to prove the legality of the execution and genuineness of the said Will by proving absence of suspicious circumstances surrounding the said Will and also by proving the testamentary capacity and the signature of the testator. Once the same is proved, it could be said that the propounder has discharged the onus. - 16 - 19. When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such a case, the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. The aforesaid view is taken by us in consonance with the decision of this Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee (AIR 1964 SC 529) and Pushpavathi v. Chandraraja Kadamba ((1973) 3 SCC 291). 20. So far as Section 68 of the Act is concerned, it categorically provides that a Will is required to be attested and therefore, it cannot be used as evidence until at least one of the attesting witnesses is called for the purpose