IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO 100 of 2004. Decided on September 16, 2010 Leela Devi & others ..Appellants. Versus General Public & others ..Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the appellants : Sh. B.S.Attri, Advocate. For the Respondents: Mr. Rajiv Jiwan, Advocate. Surjit Singh, Judge (Oral) This appeal under Section 299 of the Indian Succession Act, 1925 (hereinafter referred to as the Act) has been filed by Leela Devi, wife and Balwant Singh and Dharam Pal, sons of late Shri Tulsi Ram, against the order dated 2.3.2004 of learned District Judge, whereby their petition under Section 276 of the Act, for grant of probate and Succession Certificate in respect of Will dated 11.2.1993, allegedly executed by Tulsi Ram in their favour, has been dismissed. Whether reporters of the local papers may be allowed to see the judgment? - 2 - 2. Admittedly, appellants are the wife and sons of late Tulsi Ram. Tulsi Ram retired as Executive Engineer from Public Works Department of the State of H.P. On 11.2.1993, when, as per the contents of the Will Ex.PW-1/A, he was 58 years old, he executed the Will in favour of the appellants. Appellants sought probate of the Will by filing petition under Section 276 of the Act. Respondents Shobhna, Meenakshi, Sheetal, Dimple, Nainshi and Payal, who contested the petition, were named as respondents in the said petition. These respondents appeared and filed a written reply, in which validity of the Will was questioned. It was claimed that respondent Shobhna was the wife and other respondents were daughters of Tulsi Ram and on account of this relationship, they were the natural heirs of deceased Tulsi Ram. Learned District Judge dismissed the petition, holding that the execution of the Will was shrouded by suspicious circumstances. Such circumstances, according to the learned District Judge, are; (a) the Will is silent as to why respondents have been deprived of their right of inheritance, (b) Shobhna was the lawful wife of the deceased, whereas appellant Leela Devi was subsequently married wife of the testator, and (c) there was not even a whisper about the existence of respondents in the Will, even though they had been living in the same building as the appellants, though on a different floor. - 3 - 3. Appellants are aggrieved by the finding and the consequential order of the learned District Judge. So, they have filed the present appeal. 4. I have heard the learned counsel for the parties and gone through the record. 5. View, taken by the learned District Judge, that respondent Shobhna is the first wife of the deceased and, therefore, she alone is the lawful wife of the deceased, is perverse, being contrary to the evidence on record. It stands proved beyond any pale of doubt that respondents have been living in the same building on the ground floor, in which the appellants are residing on the first floor, long before the death of Tulsi Ram and Tulsi Ram and respondent Shobhna had been cohabiting as husband and wife and the other respondents are born because of such cohabitation. However, evidence on record shows that Leela Devi is the legally wedded wife of Tulsi Ram, because he married her prior to marrying Shobhna. A suggestion was put to PW-2 Partap Singh, one of the attesting witnesses of the Will, that Shobhna, second wife of Tulsi Ram, along with her five daughters, had been living in the house of Tulsi Ram, even when Tulsi Ram was alive. Suggestion to this witness that Shobhna was the second wife of Tulsi Ram itself is enough to dislodge the finding of the District Judge that Leela Devi was the second wife and Shobhna was the first wife of the - 4 - deceased. Further more, no suggestion was put to Leela Devi, when she was in the witness box as PW-1, that she was not the first wife of Tulsi Ram, or Shobhna, respondent was his first wife. Not only this, when Shobhna herself was in the witness box as RW-1, she did not deny the suggestion put to her that appellant Leela Devi was married to Tulsi Ram, prior to her marriage with him. She simply expressed ignorance about the fact. 6. No doubt, respondents examined a brother of Tulsi Ram, namely RW-2 Chaudhary Ram, to prove that Leela Devi was married to Tulsi Ram after the marriage of Shobhna with him, but when a positive suggestion had been put to a witness of the petitioner, namely PW-2 Partap Singh that Shobhna was the second wife of Tulsi Ram, it can legitimately be presumed that PW-2 Chaudhary Ram had been produced to wriggle out of the admission made in the form of suggestion to PW-2 Partap Singh that Leela Devi had been married to Tulsi Ram, earlier in point of time, compared to the marriage of Shobhna. The witness stated that deceased Tulsi Ram was his elder brother. He stated that his marriage with Shobhna had taken place in the year 1963 and marriage with Leela Devi took place subsequently. He stated that marriage of Tulsi Ram with respondent Shobhna took place at Bilaspur in 1963. He denied the suggestion that marriage with Leela Devi, appellant had taken place in the - 5 - year 1960. He stated that his own marriage had taken place 42 years back. This statement he made on 23.9.2002. That means, his marriage had taken place somewhere in the year 1961. Tulsi Ram being elder to him, his marriage was supposed to have been solemnized prior to his marriage, though the witness denied that Tulsi Ram’s marriage took place subsequent to his marriage. The statement does not appear to be correct. 7. Another reason for disbelieving the statement of this witness is that while he says that the marriage of Shobhna with deceased Tulsi Ram had taken place at Bilaspur, Shobhna herself says that the marriage had taken place at Chamba, when Tulsi Ram was posted there in Public Works Department. In any case, it is the respondents’ own case, per suggestion put to PW-2 Partap Singh that marriage of Leela Devi, appellant No. 1 with Tulsi Ram had taken place prior to the marriage of respondent Shobhna with him. 8. In the Pariwar Register, copy of entry Ex.R-1, also name of Leela Devi figures above the name of respondent No. 2 Shobhna, whose name, as per this entry is recorded as Dasondha. It is not in dispute that respondent Shobhna is also known by the name of Dasondha. 9. Will being silent about the testator having relationship with Shobhna and five daughters born as a result of such relationship, by itself, cannot be a - 6 - circumstance for holding that the Will is not genuine, if its due execution is otherwise proved. In the present case, execution of the Will stands proved by scribe, namely PW-4 A.L.Nadda, Advocate and two marginal witnesses, namely Partap Singh, PW-2 and Bhagirath, PW-3. There is nothing on record indicating that any of these three witnesses had any interest in falsely testifying in favour of the appellants, or depriving the respondents from inheriting the estate of Tulsi Ram. Appellant No. 1 is proved to be legally wedded wife of the testator and the other two appellants are his sons. It is a matter of common knowledge that people, living in rural areas or small townships, still are guided by old and traditional beliefs that sons should be preferred to daughters, in the matter of inheritance, particularly the house property and land. A reading of the Will Ex.PW-1/A shows that the testator did not bequeath property, even in favour of Leela Devi, appellant as an absolute owner, but created only life time interest and the remainder, that is her interest on her death, has also been bequeathed to two sons. 10. Scribe of the Will Shri A.L.Nadda, Advocate testified that he had written the Will on the asking of Tulsi Ram and after it was written, he read over and explained its contents to Tulsi Ram, who put his signatures and thereafter the Will was attested by witnesses Partap Singh, PW-2 and Bhagirath, PW-3. Partap Singh, PW-2 and Bhagirath, PW-3 - 7 - also testified on the same lines. There is no contradiction, worth noticing, in the testimony of these witnesses. The only contradiction is with respect to specific place in Court Complex, where the Will was written. While according to PW-3 Bhagirath, the Will was written in the verandah of the Court Complex, scribe PW-2, A.L.Nadda, stated that it was written in a small room, in occupation of the District Bar. The witness, on being further cross examined, stated that verandah was separate from the room in which the Will was written. This contradiction is not so serious as to render the execution of the Will doubtful, especially when the witnesses appeared in the Court to testify the execution of the Will, 10 years after its execution. The Will was executed in 1993 and the witnesses appeared in the witness box in 2003. 11. Learned counsel for the respondents submits that furnishing of no explanation in the Will for excluding the respondents, is a very strong suspicious circumstance. In support of his submission, he places reliance upon a judgment of the Supreme Court in Anil Kak v. Kumari Sharda Raje and Others, (2008) 7 SCC 695. Hon’ble Supreme Court, in the precedent relied upon by the learned counsel, has held that non explanation of depriving the natural heirs of their right, can be taken to be one of the factors while judging the validity of a Will. Authority does not say that such a fact, by itself, is enough to disbelieve the execution of - 8 - the Will. Moreover, in the present case, as stated hereinabove, respondents are not shown to be legal heirs of better class than the appellants. 12. In view of the above stated position, appeal is accepted, impugned order of the District Judge is set aside. Consequently, petition filed by the appellants for grant of probate is allowed and it is directed that probate on the form in VII Schedule of the Act, be issued in favour of the appellants. September 16, 2010 (PC). (Surjit Singh) Judge.