IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA. No. 226 of 1996. Date of Decision : February, 28,2011. Bal Kishan. ….Appellant. Vs. Ram Parshad and another. ….Respondents. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting?1No. For the appellant Mr.K.S.Kanwar, Advocate. For respondent 1. : Mr.Bhupinder Gupta, Sr. Advocate with Ms.Charu Gupta, Advocate. For LRs.No.2(b) to 2(d) Ms.Shivani Kanwar, Advocate. For other LRs. Mr. A.K.Vashishta, Advocate. Dev Darshan Sud, J(Oral). This is defendant’s second appeal against the concurrent findings of the two courts below decreeing the suit of the plaintiff- respondent granting a declaratory decree that the Will (Ext.PA) executed by late Bhangi on 3.9.1981 with respect to the suit property comprised in Khasra No. 246/291, Khata No. 82/79 Khatauni No.174 is invalid and in operative in law and the consequent proceedings including the mutation dated 20.7.1990 does not binding on the plaintiff. The findings that the Will was not duly executed in accordance with the provisions of Indian Succession Act inasmuch as the testator was incapable of understanding the nature of disposition 1 Whether reports of Local Papers may be allowed to see the judgment?yes. 2 have been upheld by the appellate Court. The defendant is now in appeal. 2. This appeal was admitted on the following substantial questions of law by this Court on 18th August, 2009: 1. Whether learned lower appellate court has erred in not drawing presumption under Section 60 of the Registration Act in favour of valid registration of the Will dated 3.9.1981 in accordance with Section 41 read with Section 35 of the Act?. 2. Whether learned courts below have drawn illegal inference from the evidence and wrongly concluded that Bhangi was incapable of executing Will dated 3.9.1981 as he was deaf and dumb from his birth and Will dated 3.9.1981 is shrouded by suspicious circumstances?. 3.Whether the findings of the court below are as a result of misreading, mis-appreciation of evidence and material on record and against the settled position of law?. 3. Before adverting to answer theses questions, all that I need to say that the facts with respect to the first two questions are settled by the learned trial Court as affirmed by the learned appellate Court. In its detailed judgment, the learned trial Court holds that on 19.2.1977, the testator Bhangi appeared in court in other proceedings and certain questions were put to him in order to appreciate as to whether he could or could not understand the nature of the deposition. The court in its detailed order records: “19.2.1977: Heard learned counsel for the patties. Bhagi plaintiff No.3 present in court. He has put questions regarding name and whether he could hear and whether he has sold the impugned land but he neither understand any question nor can speak coherently nor has been able to make the court understand any gesticulation. As such 3 it is held that he is not of a disposing mind. He is discharged. To come up for argument on 9.3.1977.” 4. This order has been proved on record as Ex. PE. There is nothing contrary on the record which has been produced in evidence to show that subsequent to the observations of the Court which have been made in Ext.PE, the mental faculties of deceased Bhangi changed to the extent that his diminished understanding had improved to the extent that he could understand the nature of the transaction he was entering into. 5. Learned counsel appearing for the appellants urges that the provisions of Section 60,41 and 35 of the Registration Act would raise a presumption that he was capable of understanding the nature of transaction more so when DW-2 Inder Vikram Singh Registrar before whom the Will was presented for registration records that Bhangi used to stammer and was capable of understanding the transaction since the Will was read over to him and he accepted the disposition of his property. 6. I cannot persuade myself to hold that this part of the evidence can be accepted as being factually correct more so when I find from the previous litigation and more especially Ext. PE that Bhangi was incapable of understanding the nature of the transaction etc. and was suing through his attorney to protect his estate. The questions raised, do not call for adjudication. One other legal submission made on behalf of the appellant requires to be noticed that a person who is a deaf and dumb is in law capable or executing a valid Will. There is no disputing this proposition. However, what has to be established on the record is that the person executing the Will irrespective of the disability is capable of understanding the nature of 4 the transaction. As held by me, I do not find that this stand established on the record of the case. 7. Both the courts below came to the definite conclusion on the fact that the testator was incapable of understanding the nature of the transaction, I do not find that the findings of fact require any interference. In these circumstances, the questions are answered against the appellant. This appeal is accordingly dismissed. No order as to costs. All interim order shall stand vacated. (Dev Darshan Sud), Judge. February 28, 2011(R)