IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 15 of 2002 Date of decision: 21.07.2010 Amar Chand and another … Appellants Versus Smt. Sneh Lata alias Lata and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellants: Mr. Karan Singh Kanwar, Advocate. For the respondents: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. V.K. Ahuja, J. (Oral): This is a Regular Second Appeal under Section 100 C.P.C. filed by the appellants against the judgment and decree dated 20.11.2001 of the Court of learned District Judge, Kullu, affirming the judgment and decree dated 27.12.2000 passed by the learned Senior Sub Judge, Kullu. 2. Briefly stated, the facts of the case are that a suit for declaration with consequential relief of injunction was filed by plaintiff Sneh Lata alleging that the house as detailed in the plaint was owned and possessed by Devi Ram, her father. It was alleged that Devi Ram during his life time executed a valid Will registered on 12.5.1987 and he bequeathed his house in favour of Sohan Lal, defendant No. 3 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 and his wife Smt. Sarswwati in equal shares. On the death of Devi Ram, the suit property came in possession of Sohan Lal, defendant No. 3 and Smt. Sarswati in equal shares as owners on the basis of the Will. Smt. Sarswati died intestate on 6.10.1992. It was further alleged that Devi Ram had firstly married the said Smt. Sarswati but no issues were born out of this wedlock and thereafter, he married Smt. Hima Devi, mother of the plaintiff and out of this wedlock, plaintiff was born in the year 1955. Smt. Sarswati was issueless and Devi Ram had no other issue except the plaintiff. The plaintiff was brought up by Devi Ram and Smt. Sarswati and her marriage was also performed by them. The plaintiff is married to one Parbhat Singh and after the death of Devi Ram, Smt. Sarswati was left alone and thereafter, the plaintiff looked after her and rendered her services during her life time. After the death of Smt. Sarswati, ½ share of the house was inherited by the plaintiff and she became owner in possession and thus, the house is jointly owned and possessed by the plaintiff and defendant No.3 in equal shares. Defendants No. 1 and 2 without any right, title and interest are openly claiming to get their names recorded as owners and they have no concern of any kind with the suit house and they were asked to admit the claim of the plaintiff, but they did not admit. Hence, the suit for declaration and injunction was filed by the plaintiff. 3. Defendants No. 1 and 2 took up preliminary objections in regard to locus-standi etc. On merits, they denied that the house in suit was owned and possessed by Devi Ram, father of the plaintiff. They also denied that Devi Ram had executed the Will dated 12.5.1987 in favour of defendant No. 3 and Smt. Sarswati. Thus, it was pleaded that Devi Ram was neither owner nor in possession of the suit property and 3 therefore, there is no question of inheritance by defendant No. 3 after the death of Devi Ram. It was admitted that Smt. Sarswati died on 6.10.1992, but it was denied that she died intestate. It was alleged that the house in question was owned by one Dina Nath, who by way of registered sale deed dated 4.1.1950 sold the Abadi land alongwith the house in favour of Smt. Sarswati for consideration and as such, Smt. Sarswati became the owner in possession of the same. He also made a gift of the adjoining vacant abadi land of the suit house in favour of Smt. Sarswati, who raised construction on the vacant abadi land and became owner in possession of the suit property. Thus, the suit property was the self acquired property of Smt. Sarswati and Devi Ram had got no right, title or interest thereon. Smt. Sarswati had no male or female issue and during the childhood of the defendants, Smt. Sarswati and her husband Devi Ram adopted defendants No. 1 an 2 as their sons and defendants No.1 and 2 were looking after her and were brought up by Smt. Sarswati and her husband and the defendants had been rendering services to them. Defendants No. 1 and 2 being the adopted sons of Smt. Sarswati were entitled to inherit her estate, but in order to avoid any future complications, Smt. Sarswati executed the Will dated 23.5.1992 bequeathing her property in favour of defendants No. 1 and 2 and thus, defendants No. 1 and 2 have become owners on the basis of the Will in question and the suit filed by the plaintiff was liable to be dismissed. 4. On the pleadings of the parties, the following issues were settled by the learned trial Court:- 1. Whether the plaintiff is daughter of Shri Devi Ram deceased? OPP 4 2. Whether the plaintiff is heir of Sarswati? OPP 3. Whether Sarswati executed a valid Will dated 23.5.1992 in favour of defendants No. 1 and 2, as alleged? OPD 1 and 2 4. Whether the suit is properly valued for the purpose of Court fee and jurisdiction? OP Parties 5. Whether the suit in the present form is not maintainable? OPD 1 and 2 6. Whether the plaintiff has no locus-standi and cause of action to file the present suit? OPD 7. Relief. 5. Parties led their evidence. The learned trial Court vide its judgment decided Issues No. 1 to 6 in favour of the plaintiff and as against the defendants and consequently, decreed the suit of the plaintiff for declaration and injunction. 6. On appeal those findings were upheld by the learned District Judge vide his judgment. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 8. On appraisal of the findings of the learned trial Court, it is clear that the Will in question was held to be surrounded by suspicious circumstances and those findings were upheld by the learned District Judge on appeal. It had come up in evidence that the Will in question was also attested by the Notary and the appeal was admitted by this Court on substantial question of law No. 2 as to what is the effect of attestation of the Will Ext. DW2/A by DW-3 Ashok Marwah, Notary Public in view of Section 8 of Notary Public Act, 1952. 9. The Will in question was required to be attested by two of the attesting witnesses and it was also attested by two of the 5 attesting witnesses, namely, DW-4 Kehar Singh and one Balbir Singh. It is also evidence that Notary Public DW-3 Ashok Marwah had attested the Will and as such, reliance is sought to be placed upon the testimony of DW-3 Ashok Marwah, Notary Public, who had attested the Will that it gives further credence to the Will in question. According to Section 8 of the Notary Public Act, it specifies the function of Notary. According to Section 8(1) of the Act, a Notary may do all or any of the acts by virtue of his office, namely, verify, authenticate, certify or attest the execution of any instrument. Thus, a Notary Public was competent to attest the execution of any instrument produced before him for authentication. Rule 11(8) of Notary Rules reads as under:- “(8) The notary may – (1) draw, attest or certify documents under his official seal including conveyance of properties; (2) note and certify the general transactions relating to negotiable instruments; (3) prepare a Will or other testamentary documents; and (4) prepare and take affidavits for various purposes for his notarial acts.” 10. It follows from the above discussion that the notary can even prepare a Will or other testamentary documents. In the present case, no Will has been prepared by the Notary, but it has been prepared by one Advocate DW-2 Shri Yadvinder Gupta, Advocate. Therefore, Rule 11(8) is not attracted to the present facts. In regard to Section 8 mentioned above, the Notary could have authenticated the attestation of any instrument. It presupposes the existence of any instrument already executed in accordance with law. 6 It has come up in the testimony of DW-4 Kehar Singh, an attesting witness, that the Will was firstly signed by Ashok Marwah, who is the Notary in the present case. The Notary could not have attested the document which had not been duly executed and could not have signed the Will before it was duly executed by the executant, thumb marked or signed by the executant and then attested by two of the attesting witnesses. His statement shows that he had attested a document which had not been executed so far and as such, the attestation made by him of the document in question in anticipation of the completion of the execution does not give credence to the Will or its authenticity, which cannot be relied upon. The learned Courts below had considered this question and his evidence could be taken to be that of attesting witness only but does not give support to the Will, which has to be proved to have been duly executed by the executant. 11. The learned trial Court has summed up some reasons in holding that the Will in question was surrounded by suspicious circumstances. The learned District judge has elaborated in detail in Para-34 of its judgment and have also summed up on the suspicious circumstances. 12. I do not have any reason to disagree with the suspicious circumstances elaborated by the learned District Judge, which can be termed as suspicious circumstances and these need not be reproduced since the appeal was not admitted on any such substantial question of law in regard to suspicious circumstances. Suffice to say, one of the attesting witnesses Balbir Singh was brother-in-law of defendant No. 1 beneficiary who was also present at that time and the other attesting witness Kehar Singh was a taxi driver and a 7 tenant of said Balbir Singh, who had been called to the house of defendant No. 1 for execution of the Will and not that the executant had called the witnesses to her house for execution of the Will. The presence of Ashok Marwah, Notary, at the house of defendant No. 1 prior to the execution of the Will also raises a doubt about the execution of the Will since he was not required to be present as a Notary once the document in question had not been executed so far. He was present at the spot before the Will in question could be executed. A plea of adoption was also taken by defendants No. 1 and 2 in their favour which was not proved and as such, the learned trial Court held that the Will in question was not genuine and was surrounded by suspicious circumstances, which had not been removed by the propounder of the Will and those findings were rightly affirmed by the learned District Judge and those do not call for an interference by this Court. 13. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed. Parties are left to bear their own costs. ( V.K. Ahuja ), July 21, 2010 Judge (BSS) 8