Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Regular Second Appeal No. 227 of 2000. Judgment reserved on : 06.07.2010. Date of Decided : July 14,2010. Milkhi and another. …… Appellants. Versus Smt. Ahilya. …….Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? Yes. For the appellants : Mr. N.K. Thakur, Advocate. For the respondent : Mr. Rakesh Thakur, Advocate. Surinder Singh, J. 1. The present second appeal was admitted on 07.12.2000, on the following substantial questions of law:- (i) Whether in the facts and circumstances on record the custom of GADDIS whereby a daughter is debarred from inheriting the property of her parents is proved, if yes, what is its effect? (ii) Whether the Courts below have misread and misinterpreted the evidence on record to hold that the Will executed in favour of respondent is a valid Will free from suspicious circumstances? 2. After having lost in both the Courts below, the defendants are in appeal before this Court. In short, the facts - 2 - giving rise to the present regular second appeal can be stated thus. Both the parties are closely related. Case of the respondent has been that her father Shri Roomi Ram was the owner of the suit property. He died on 30th March, 1988. During his life time, he had executed a Will, which was registered on 4.10.1985, in her favour. She also performed his last rites, thus being his daughter as well as beneficiary under the Will, she was entitled to inherit his property. It is alleged that in her absence the defendants-appellants got Mutation No.138 attested in their favour staking their claim on incorrect facts. Thus, she had filed a suit seeking declaration that the said mutation was wrong and illegal, as she was entitled to inherit the property with the consequential relief of possession. The suit was decreed in her favour, thereafter Mutation No.149 was attested on the basis of the Will aforesaid. In this subsequent suit, she sought injunction, thereafter the appellants allegedly took the possession of the suit property in the month of August, 1992, without any right, title or any authority, as such, she amended the plaint praying for possession. 3. The suit was resisted and contested by the appellants. They filed the written statement and raised the preliminary objections regarding maintainability of the suit - 3 - and also took up the objections of estoppel and questioned the locus-standi of respondent to file the suit. On merits, they contented that the parties are ‘Gaddis’ and are governed by custom in the matter of succession, thus the provisions of Hindu Succession Act were not applicable to them. It was further averred that as per custom prevalent amongst the ‘Gaddis’, the daughters do not inherit the property of their father, but only the widow can enjoy the properly till her life time. They got attested the mutation No.138 in their favour. According to them, it was wrongly cancelled. They also denied the execution of Will in favour of the respondent as alleged as the deceased Roomi Ram was not competent to do so. It was also averred that the Will propounded by her was forged and fictitious document. It was also a case of the appellants that the respondent after marriage was residing in her inlaws for about 30 years and they were in the possession of the suit property. 4. In replication, the preliminary objections were denied and even paras of the merits were reasserted. 5. On the above pleadings, the parties, seven issues were framed on 1.7.1992, but later an amendment was sought in the plaint for possession as the defendants have taken the possession of the suit property during the - 4 - pendency of the lis. The amendment was allowed and finally on 10.7.1996, from the pleadings of the parties, the following issues were framed:- (i) Whether Shri Roomi has executed a valid Will dated 4.10.1985 in favour of the plaintiff as alleged? …OPP. (ii) Whether the plaintiff is entitled for the relief of possession as prayed for? …OPP. (iii) Whether the suit in the present form is not maintainable? …OPD. (iv) Whether the suit is properly valued for the purpose of Court fee and jurisdiction? …OPD. (v) Whether the plaintiff is estopped by his act and conduct etc. as alleged? …OPD. (vi) Whether the plaintiff has no locus standi to file the present suit? …OPD. (vii) Whether the parties are gaddi by caste and governed by Gaddi custom, if so, what is that custom? …OPD. (viii) If issue No.1 is proved in the affirmative, whether Shri Roomi was not competent to execute a Will in favour of the plaintiff as alleged? …OPD. (ix) Relief. 6. On the completion of trial, the learned trial Court held that the parties being ‘Gaddi’ by caste though were governed by its agricultural custom and daughters do not inherit the property of their father, yet there was no bar to the daughter succeeding to the property of her father on - 5 - the basis of the Will. The Will was held to be a genuine document, as such, the suit was decreed. 7. The appellants were unsuccessful in appeal. The first Appellate Court reappraised and reconsidered the arguments of the appellants and held that the appellant failed to prove custom that property cannot be inherited by the Will and also that no such custom was recognised by any Court. The Will in question executed by her father stood proved on record and there were no suspicious circumstances. 8. In the instant case, the respondent is the sole statutory heir of her father. The only point urged before me by the learned counsel for the appellant is that when the daughter cannot inherit the property of her father, as per the custom, she can also not succeed to the estate of her father by Will and the Will in question is also a forged document. At the very outset, I would like to say that on the scrutiny of the evidence, nothing has been brought on record that there was a custom prevalent amongst ‘Gaddis’ that even the daughters would not get the property of their father on the basis of the Will. When the custom contains no bar to bequeath the property by Will, it cannot be presumed to contain such bar on the analogy advanced by the learned - 6 - counsel for the appellant. Therefore, these are devoid of any merit, hence rejected. 9. The next question arises whether the evidence regarding Will was misinterpreted by the Courts below and is surrounded by suspicious circumstances. 10. PW2 Gian Chand is a Scribe of the Will Ex.P4. He testified on oath that it was prepared at the instance of said Roomi Ram. After completing the Will, it was read over to said Rooomi Ram. He admitted its correctness and thereafter signed it in the presence of the marginal witnesses. The Will was also entered by him in the register meant for it. 11. PW5 Shri M.S. Thakur, Advocate, has identified the deceased at the time of registration of the Will before the Sub-Registrar, Chamba and the contents thereafter were also read over by the Sub-Registrar to said Shri Roomi Ram, again he admitted to be correct and appended his signatures before the said Sub-Registrar. 12. PW4 Mohinder Singh, one of the marginal witnesses stated that the Will in question was executed by Roomi Ram, which was scribed by PW2 Gian Chand. In his presence, it was read over and then admitted to be correct by said Shri Roomi Ram. After its correctness, he appended his signatures in his presence and thereafter both the witnesses have - 7 - signed and later it was registered. The Will satisfied the requirement of Section 63 of the Indian Succession Act and it also stands proved as per the provision of Section 68 of the Indian Evidence Act. 13. The appellants failed to bring any circumstance to suspect the Will. Even Milkhi appellant as DW-1 admitted that Roomi Ram was having sound health till his death. 14. Against the aforesaid background, the first Appellate Court was right to observe that the judicial discretion against the aforesaid circumstances cannot be exercised to reject the Will in question as the testator out of his natural love and affection rightly bequeathed the property by executing a Will in favour of his daughter. 15. On the scrutiny of evidence, I do find that the Courts below have rightly appreciated and interpreted the evidence on record and the Will in question is a valid document, free from any suspicious circumstances, as such, it was rightly believed and acted upon. Though according to custom, Gaddi’s daughter is debarred from inheriting the property of her parents, but there is no bar succeeding to it on the basis of Will. The substantial questions of law are accordingly answered. The appeal lacks merits and hence dismissed. - 8 - 16. The parties are left to bear their own costs. (Surinder Singh) Judge July 14, 2010. (Pds)