IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 178/2010 Reserved on:29.11.2010 Decided on:31.12. 2010 ________________________________________________ Smt. Kalawati and another. …Appellants. Versus Simpoo and another. …Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellants : Mr. Rahul Mahajan, Advocate. For the Respondents : Mr. Nimish Gupta, Advocate vice Mr. S.D. Vasudev, Advocate. ________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal has been directed against the judgment and decree dated 17.12.2009 passed by the learned Additional District Judge, Fast Track Court, Kangra at Dharamshala in Civil Appeal No. 23-K/13/2008. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondents-plaintiffs (hereinafter referred to as the ‘plaintiffs’ for convenience sake) 1 Whether reporters of the local papers may be allowed to see the judgment? . no. 2 filed a civil suit through their mother/natural guardian, as they were minor. It was stated that the suit property, detailed in the plaint, was earlier owned and possessed by one Sh. Diwan Chand and other co-sharers. Sh. Diwan Chand was grand-father of the plaintiffs, husband of appellant-defendant No.1 and father of appellant-defendant No.2 (hereafter referred to as the defendants for convenience sake). The relations between defendants and Diwan Chand were not cordial. Defendant No.1 had also instituted petition under section 125 of the Code of Criminal Procedure against Sh. Diwan Chand. Sh. Diwan Chand had executed registered will on 4.7.2000 (Ex.PW-2/A) in sound and disposing mind in favour of plaintiffs in equal shares and he had also bequeathed house alongwith one Kanal of land of the suit land. Defendants got mutation No. 892 sanctioned in respect of the suit land after the death of Dewan Chand. The mutation was challenged by the plaintiffs on the ground that the same has been attested by ignoring the duly executed will dted 4.7.2000. The suit was filed for declaration that mutation No. 892 dated 22.8.2001 be declared null and void of the suit property, after the death of Diwan Chand. Defendants filed written statement to the plaint. On merits, defendants did not dispute that the suit property was earlier owned and possessed by Diwan Chand alongwith other co-sharers. It was denied that 3 relations between defendants and Diwan Chand were strained. Defendants stated that Diwan Chand used to reside with Bal Krishan. According to defendants, Diwan Chand was healthy and in good state of mind and he had executed a will in favour of both the parties and he also cancelled the earlier will. According to them, the will dated 4.7.2000 was not valid and it was null and void. According to them, on the basis of will dated 15.10.2000, a legal and valid mutation was sanctioned after the death of Diwan Chand on 22.8.2001. Trial Court framed the issues on 21.11.2003. Trial Court decreed the suit partly. Defendants preferred an appeal before the Additional District Judge, Fast Track Court, Kangra at Dharamshala. The same was dismissed by him on 17.12.2009. Hence, the present Regular Second Appeal. 3. Mr. Rahul Mahajan has strenuously argued that the judgments and decrees of both the courts below are against the principles of law and the learned courts below have misconstrued the oral as well as documentary evidence. 4. Mr. Nimish Gupta has supported the judgments and decrees passed by both the courts below. 5. I have heard the learned counsel for the parties and have perused the material placed on record. 4 6. PW-1 Sarda Devi is the natural guardian of plaintiffs. She has testified that her husband Rumel Singh was son of Diwan Chand and after the death of her husband; she used to reside with Sh. Diwan Chand. She has deposed that they had been rendering services to Sh. Diwan Chand. She also testified that on 4.7.2000, Sh. Diwan Chand had executed a will in favour of plaintiffs and it was written by Mohan Lal (PW-2), Petition Writer, in the presence of witnesses, namely, Sh. G.C. Sharma and Mul Raj (PW-3). She has denied the execution of will in favour of defendants on 15.10.2000. She has proved will Ex.PW- 2/A dated 4.7.2000. 7. PW-2 Mohan Lal has testified that will Ex.PW-2/A was written by him on the instructions of Sh. Diwan Chand. He has testified that the will Ex.PW-2/A was read over and explained to Sh. Diwan Chand in the presence of witnesses and Diwan Chand had admitted the same to be correct and in the presence of witnesses he had appended his thumb impression over the will Ex.PW-2/A. PW-2 has also signed the will in the presence of Diwan Chand. He had also supported the entry on the said will in his register at Sr. No. 405 dated 4.7.2000. The extract of the same is Ex.PW-2/B. 8. Sh. G.C. Sharma, one of the marginal witnesses, has died. PW-3 Mul Raj has also supported the statement of 5 PW-2 Mohan Lal. According to him, wife of Rumel Singh alongwith her children used to reside with Diwan Chand and they had been rendering services to him. According to him, defendants were residing separately. He also testified that will Ex.PW-2/A was executed in his presence and at that time, witness G.C. Sharma was also present. He also deposed that the will subsequently was produced before the Tehsildar for registration and before Tehsildar, he also signed the will. 9. It is not in dispute that will Ex.PW-2/A was registered by Tehsildar and the endorsement by the Tehsilodar is Ex.PW-3/A. The plaintiffs have duly proved the execution of will Ex.PW-2/A. There are no suspicious circumstances surrounding the execution of will. 10. Mr. Rahul Mahajan has strenuously argued that the will Ex.PW-2/A was written on judicial papers of the year 1997. This has been explained by PW-2 Mohan Lal. Mr. Rahul Mahajan has also argued that his client had not been given ample opportunity to prove the will dated 15.10.2000. It is borne out from the records that the plaintiffs’ evidence was closed on 24.10.2005. The suit was fixed for defendants’ evidence on 13.3.2003. Six opportunities were granted to the defendants between 13.3.2003 to 24.9.2007 to adduce evidence. Last opportunity was granted on 24.9.2007 to produce the evidence 6 on self responsibility on 17.11.2007. The defendants have been given ample opportunity to prove will dated 15.10.2000. Sh. Diwan Chand has executed the will in favour of plaintiffs on the basis of services rendered by them to him. It is also proved on record that the relations between Diwan Chand and defendant Kalawati were not cordial. She had instituted petition under section 125 of the Code of Criminal Procedure. It is also proved on record that late Sh. Diwan Chand was residing with the plaintiffs and not with defendants. The will Ex.PW-2/A dated 4.7.2000 is registered will and has been executed in accordance with law. The plaintiffs have examined the scribe of the will and one of the marginal witnesses. One of the marginal witnesses, namely, Sh. G.C. Sharma has died. Thus, the mutation No. 892 was illegal and the same has been attested by ignoring the validly executed will dated 4.7.2000. 11. Accordingly, in view of the discussions made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Rajiv Sharma), J. 31.12. 2010. *awasthi*