IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.203 of 2000 along with RSA No.204 of 2000. Judgment reserved on:10.12.2009. Date of Decision: 18.12.2009. RSA No.203 of 2000: Tajinder Singh and another ..Appellants Versus Ram Murti Lamberdar and others ..Respondents RSA No.204 of 2000: Tejinder Singh and another ..Appellants Versus Karnail Singh and others ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes For the Appellant(s): Mr. Bimal Gupta, Advocate For the Respondent(s): Mr.Bhupinder Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate. Deepak Gupta, J. These two appeals are being disposed of by a common judgment since they arise out of one judgment passed by the learned District Judge, Sirmaur District at Nahan on 17.2.2000. It would be necessary to give the facts of RSA No.204 of 2000. The plaintiffs are the widow and children of late - 2 - Sh.Gurnam Singh. According to them, they are owners in possession of the suit land measuring 24 bighas 11 biswas situate in village Nagal Saketi and detailed in the heading of the plaint. One Sohan Singh son of Jharu was the original owner of this land. He died on 13.12.1993. The inheritance regarding the estate was mutated vide Mutation No.392 in favour of the defendants Tejinder Singh and Harjinder Singh on the basis of a Will (Ext.D-5) executed in their favour on 3.6.1987. The plaintiffs alleged that they are the legal heirs of Gurnam Singh who was the pre-deceased son of Sohan Singh. According to them, Sohan Singh had not executed any Will dated 3.6.1987 in favour of the defendants and the same is a forged will and a result of fraud and mis-representation and undue influence on the testator and hence not a valid Will. This suit was contested by the defendants on the ground that the Will had been duly executed in their favour. According to the defendants, Gurnam Singh, predecessor-in-interest of the plaintiffs was not the son of Sohan Singh. They alleged that Sohan Singh was residing with their father Mohinder Singh who had rendered services to the testator and as such the Will was executed by the testator in their favour. - 3 - The learned Trial Court held that the Will was not genuine and the defendants had failed to explain the various suspicious circumstances surrounding the Will. It was further held that Gurnam Singh was the son of Sohan Singh and therefore the plaintiffs had inherited the estate of the deceased. The judgment in Civil Suit No.80/1 of 1994 was confirmed by the learned District Judge in appeal. As far as RSA No.203 of 2000 is concerned the same arises out of a Civil Suit No.52/1 of 1997 filed by Tejinder Singh and Harjinder Singh, defendants in the other suit against Ram Murti and other villagers of village Saketi wherein they had prayed that they are owners in possession of the suit land and defendant have no right and interest in the aforesaid land. This suit was decreed by the trial Court. The learned District Judge heard the appeal filed by the defendants in this suit along with the appeal filed by Tajinder Singh and Harjinder Singh in the other case and came to the conclusion that since the Will has not been proved in favour of Tajinder Singh and Harjinder Singh they are not entitled to the decree prayed for. The Appeal filed by the defendants was allowed and the suit filed by Tajinder Singh and Harjinder Singh was - 4 - dismissed. This has given rise to the aforesaid two appeals. RSA No.204 of 2000 has been admitted on the following questions of law: “1.Whether decision of learned District Judge that Gurnam Singh was son of Sohan Singh has vitiated for not considering Ext.D2 voters list, Ext.DW7/A mutation, and Ext. DW7/B pedigree table wherein Gurnam Singh has been recorded son of Neki Ram and whether learned District Judge has erred in relying mutation No.392 and Will dated 3.6.1987 Ext.D5 for this purpose when mutation No.392 and Will Ext.D5 have otherwise not been believed by learned District Judge and in that situation whether plaintiffs have locus standi to challenge Will dated 3.6.87 Ext.D5? 2. Whether inference drawn by learned District Judge for non-execution of Will Ext.D5 is wrong, illegal and based upon misconstruction, misinterpretation of the proved material on record and whether endorsement made by the Sub-Registrar at the time of registration of the Will Ext.D5 is admissible for purposes of proving that the Will has been duly registered in the manner provided under Section 60 of the Registration Act, 1908 and the facts mentioned in the endorsement have occurred as mentioned therein? 3.Whether learned District Judge has erred in declaring plaintiffs in possession of the suit land by misconstruing the material on record and also for not considering the statement of PW3 Kashmiro, grand mother of Plaintiffs, who has specifically admitted that defendants are in possession of the suit land?” The decision of RSA No.203 of 2000 is totally dependent upon the decision in RSA No.204 of 2000. This - 5 - appeal has been admitted on the following question of law: “1.Whether learned District Judge has erred in deciding Civil Appeal No.58-CA/13 of 98 on the basis of findings recorded in Civil Appeal No.92-CA/13 of 99 even though both the appeals have arisen out of separate suits in which parties are different and evidence is different, without considering the evidence of Civil Suit No.52/1 of 97 for deciding Civil Appeal No.58-CA/13 of 98 which appeal has arisen out of Civil Suit No.52/1 of 97 and thus the impugned judgment, decree has vitiated?” I have heard Sh.Bimal Gupta, learned counsel for the Appellants and Sh.Bhupinder Gupta, learned Senior Counsel appearing on behalf of the respondents. First of all, I shall deal with the submission of Sh.Bimal Gupta that Gurnam Singh has not been proved to be the son of Sohan Singh. Sh.Bimal Gupta urges that they had led sufficient evidence on record to show that Gurnam Singh, in various documents, i.e. list of voters Ext.D2, mutation Ext.DW7/A, pedigree table Ext.DW7/B etc. was recorded to be the son of Neki Ram. In this behalf it is pertinent to mention that the admitted facts are that Sohan Singh was married to Kashmiro Devi PW-3. It is also not disputed that about two years after her marriage with Sohan Singh, Kashmiro Devi left the company of her husband Sohan Singh. She thereafter started living with - 6 - one Neki Ram in Village Teja Mori, Tehsil and District Ambala. Neki Ram was her second husband. In the school record and in the record relating to village Teja Mori Gurnam Singh was shown to be the son of Neki Ram. Kashmiro Devi has appeared in the witness box and stated that Gurnam Singh was her son born out of her wed-lock with Sohan Singh. This version has been supported by other witnesses and there is no reason to disbelieve the same. Even otherwise the documents relied by the present appellants themselves show that Gurnam Singh was the son of Sohan Singh. Sohan Singh had executed a Will Ext.PB in favour of Gurnam Singh. This fact is admitted by the appellants. The said Will was cancelled vide Ext.PW- 10/A by Sohan Singh on 28.1.1986. Thereafter, he executed a Will Ext.D-5 on the basis of which Will the defendants claimed to have become owners of the suit property. In this Will it is clearly mentioned that the testator Sohan Singh has one son Gurnam Singh and the testator had executed a Will in favour of Gurnam Singh on 28.8.1984 which was cancelled on 28.1.1986. This is a clear-cut admission made by Sohan Singh in the Will relied upon by the appellants that Gurnam Singh was his - 7 - son. Therefore, it is obvious that the contention of the appellant that Gurnam Singh was not the son of Sohan Singh cannot be accepted. It may be true that Neki Ram the second husband of Gurnam Singh’s mother Kashmiro Devi accepted Gurnam Singh as son and he was shown as such in the record of village Teja Mori but this does not mean that Gurnam Singh in any manner ceased to be the son of Sohan Singh. Even in the mutation order dated 25.4.1994 whereby the estate of Sohan Singh was attested in favour of the defendants it is clearly mentioned that Sohan Singh had a wife Kashmiro Devi and from this wed-lock a son Gurnam Singh was born who had already died leaving behind his widow and five children who are the plaintiffs in the suit. This mutation was attested at the behest of the father of the appellants and therefore it does not lie in their mouth to question the paternity of Gurnam Singh. Question No.1 framed in RSA No.204 of 2000 is accordingly decided against the appellants and it is held that the findings of the learned District Judge that Gurnam Singh was the son of Sohan Singh is a finding of fact based on material on record and there is no reason to interfere with this finding. - 8 - The next question is with regard to the validity of the Will Ext.D-5. Both the Courts below have held that the Will was surrounded by suspicious circumstances and therefore they held that same was not genuine. Sh.Bimal Gupta, learned counsel for the appellants stated that the execution of the Will has been proved by scribe and the attesting witnesses. He submits that there are no reasons to hold that there are any suspicious circumstances surrounding the Will. According to him, the respondents had not even challenged the execution of the Will but had only urged that the same is a fraudulent and forged Will. He submits that these allegations were not substantiated during the course of evidence. According to him, the Will has been proved on record and there is no reason to discard the same. The law with regard to the proof of the genuine execution of Will and how a evidence led in this behalf is to be appreciated by the Court, has been laid down by the Apex Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and others, AIR 1959 SC 443. This is a detailed decision of the Apex Court in which their Lordships had considered the question as to how the Will is required to be proved, how the evidence is to be - 9 - appreciated by the Court and what is the duty of the Court in appreciating such evidence. It also lays down the law as to how the propounder of the Will is required to remove the suspicious circumstances surrounding the Will, if any. The observations made in paras 18, 19 and 22 of the said judgment are relevant which are reproduced as under: “18………… It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribe by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. 19. ……..The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 22. ………It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that it there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties……” - 10 - Reliance is placed by Sh.Bimal Gupta on the judgment of the Apex court in Meenakshiammal (Dead) through LRs and others vs. Chandrashekaran and another, (2005) 1 SCC 280, wherein the apex court held that once the execution of the Will is proved then the onus shifts on the person who alleges that the Will is a forged one or has been executed under undue influence. However, it is important to mention that in this very judgment the Apex Court held as follows: “16. We do not find any merit in this civil appeal. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, is sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before it accepts the will as genuine. Even where the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be regarding the genuineness of the signature of the testator, the condition of the testator's mind, the disposition 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 normally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator.” Mr.Bimal Gupta, urges that in this case the execution of the Will has been sufficiently proved. He submits that the observations of the Courts below that the witnesses were from different villages is a suspicious circumstance is against the law laid down by the Court in Jagdish Ram - 11 - and others vs. Behari Lal and others, 1998 (1) Shim. L.C. 97, wherein it has been held that it is not necessary that the attesting witnesses should be from the same village as the testator. It is further urged by Shri Bimal Gupta, that the Will was executed in the year 1987 and the testator Sohan Singh died in 1993. In case he had not executed the Will there was nothing which prevented from canceling the Will till his death. Reliance is also placed on the judgment of a Single Judge of this Court in Om Parkash and others vs. Bhup Singh and others, Latest HLJ 2009 (HP) 106. In this judgment it was held that the mere presence of the beneficiary at the time of execution of the Will does not show exercise of any undue influence on the testator. In the present case it would be pertinent to refer to the statements of the witnesses regarding the Will. DW-6 Sh.Mohan Lal is the scribe of the Will. According to him he scribed the Will on the instructions of the testator in favour Tejinder Singh and Harjinder Singh of sons of his nephew Mohinder Singh. According to him after typing of the Will in English he read over and explained the same to the testator in vernacular who after understanding the same - 12 - signed the Will in the presence of the attesting witnesses Faquir Chand and Churu Ram. He also made entry regarding the Will in the register. In cross examination he states that he does not remember whether Mohinder father of the defendants was present when the Will was executed. Thereafter, on seeing Mohinder Singh in Court he stated that Mohinder Singh was present when the Will was executed. He in fact admits that Mohinder Singh had paid him the charges for preparation of the Will. This witness also scribed the Will dated 28.8.1984 executed by Sohan Singh in favour of Gurnam Singh and the cancellation deed on 28.1.1986. He admits that there is no endorsement on the Will that he had read over and explained the same to the testator in Hindi. He also admits that the identification of the testator by Sh.D.R. Sharma, Advocate was not done in his presence and he is not aware when this endorsement was added to the Will. He did not appear before the Registering Officer. This witness admits that his licence as Document Writer has been cancelled 3-4 times and that in 1961 he was sentenced to one month’s imprisonment which was set- aside by the High Court. He also admits that he was - 13 - convicted for Contempt of Court by the High Court of Himachal Pradesh. DW-8 Churu Ram is one of the attesting witness. In examination-in-chief he stated that he knew the testator who had got the Will Ext.D-5 prepared from Mohan Lal in his presence. According to him he had come to Nahan in connection with some personal work and then Sohan Singh asked him to act as an attesting witness. According to him the Will had been explained in Hindi to the testator in his presence and in the presence of the other attesting witness and thereafter the testator signed the Will. Then he and the other attesting witness also signed the Will. In cross examination he states that Sohan Singh did not have any son and he always saw him alone. He states that Sohan Singh used to reside with Mohinder Singh father of the defendants. He admits that Sohan Singh’s father’s name was Jharu and that father of Asha Ram (father of Mohinder Singh) was Maru Ram. He states that Mohinder Singh was not present when the Will was executed. He also states that Mohan Lal asked Sohan Singh about his legal heirs and Sohan Singh informed Mohan Lal that he had no legal heirs. He further states that in his presence Sohan Singh never informed Mohan Lal that Gurnam - 14 - Singh is his son. He also states that in his presence Sohan Singh did not make any statement that he had earlier executed a Will in favour of his son Gurnam Singh which had been cancelled. According to him Mohan Lal went to the Tehsildar. DW-9 Faquir Chand is the other attesting witness. According to him Sohan Singh was known to him for long. Sohan Singh called him from his village and took him to Nahan for the purpose of signing as attesting witness to the Will. He further states that after the Will was written by Mohan Lal he read over the same and explained the same to Sohan Singh who then signed the same. Thereafter, he and the other attesting witness signed the Will. He further states that after execution of the Will Sohan Singh, Churu Singh and Mohan Lal went to the office of the Tehsildar. In cross examination he admits that Sohan Singh informed him one day prior to the execution of the Will that he was to act as attesting witness. He also stes that Mohinder had also accompanied them. He states that he never went to the office of the Tehsildar. He further states that Sohan Singh had given revenue papers regarding his land to the scribe Mohan Lal and had stated that he wants to make a Will in favour of the defendants. - 15 - He states that he does not know whether Sohan Singh was ever married but according to him Sohan Singh used to reside with Rachni Devi mother of Mohinder Singh. He admits that Gurnam Singh stayed with Sohan Singh for about one year. According to him when the Will was executed Sohan Singh had not informed Mohan Lal that Gurnam Singh was his son. He states that Sohan Singh had only stated that he had executed one Will in favour of Gurnam and he had got it cancelled. Sh.D.R. Sharma, Advocate had identified the testator Sohan Singh before the Sub Registrar. It is pertinent to mention that Sh.D.R. Sharma was the counsel for the defendants and despite knowing the fact that he was one of the persons connected with the Will which was the bone of contention between the parties he continued to appear in the case. He in fact continue to appear in the case even after his statement was recorded and I am constrained to observe that for this reason alone his evidence cannot be looked into. From the evidence discussed hereinabove it is obvious that there are serious discrepancies in the statements of the witnesses. Sohan Singh had already executed one Will which he had cancelled. He was - 16 - aware how a Will is executed. He knew that two attesting witnesses are required. If he could call one attesting witness on the previous day there was no reason why he could not call the other attesting witness also. It is in this context that the presence of these witnesses who were from different villages is a suspicious circumstance. Secondly the statement of Mohan Lal does not inspire confidence. Firstly he denied that Mohinder Singh was present. Then he admitted the presence of Mohinder Singh and also admitted the fact that his remuneration for drafting the Will was paid by Mohinder Singh. This witness has been involved in a number of cases and his conduct is not above board, as such no reliance can be placed on his testimony. Coming to the two attesting witnesses, one says that Mohinder Singh was present whereas the other says that Mohinder Singh was not present. They say that Mohan Lal went to the office of the Tehsildar whereas Mohan Lal stated to the contrary. According to these witnesses in their presence the Will was read over and explained to the testator. Witnesses are not required to know the contents of the Will but when the Will was read over and - 17 - explained to the testator they would be required to know the contents thereof. Churu Ram states that no mention of Gurnam Singh was made in his presence and that Sohan Singh never informed Mohan Lal that Gurnam Singh was his son. According to Faquir Chand, Sohan Singh had only informed that he had earlier executed a Will in favour of Gurnam Singh which was cancelled but had not stated that Gurnam Singh was his son. This is contrary to the contents of the Will in which it is clearly stated that the deceased had a son Gurnam Singh and had earlier executed a Will in his favour which was got cancelled. According to Faquir Chand, Sohan Singh had produced the revenue papers of his land and handed over the same to Mohan Lal. This is totally contrary to the statement of Mohan Lal. Even in the Will there is no description of the property of Mohan Lal. The property is only described with reference to the village and no reference to khasra number etc. has been given. In case revenue record had been produced then the land would have been described in detail in the Will. It is obvious that these witnesses are telling lies. - 18 - In the Will Mohinder Singh is described to be the real nephew of Sohan Singh. From the statements of the witnesses it is apparent that this is not correct since it stands proved that Asha Ram father of