( 2025:HHC:18170 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Regular Second Appeal No.82 of 2019 Reserved on: 5th June, 2025 Date of decision: 16th June, 2025 Akash Deep …Appellant Versus Raksha Rehaan & another …Respondents Coram The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting? For the Appellant: Mr. Vinay Sharma, Advocate. For the Respondents: Mr.N.K. Sood, Sr. Advocate with Mr.Aman Sood, Advocate for respondent No.1. Respondent No.2 is ex-parte. Vivek Singh Thakur, Judge Appellant Akash Deep has preferred present appeal assailing the judgment and decree dated 27.4.2018 passed by the Additional District Judge(III), Kangra at Dharamshala in Civil Appeal No.21-P/XIII/2016 titled Jai Deep vs. Raksha Rehaan and another whereby appeal preferred by respondent No.2 Jai Deep has been dismissed and judgment and decree dated 26.7.2016 passed by the Civil Judge (Junior Division), Palampur, District Kangra decreeing the Civil Suit No. 183 of 2008 titled Raksha Rehaan vs. Akash Deep and another, has been affirmed. ( 2025:HHC:18170 ) 2 Respondent No.1 Raksha Rehaan is mother of appellant Akash Deep and respondent No.2 Jai Deep. Bal Krishan Rehaan, husband of Raksha Rehaan and father of Jai Deep and Akash Deep, had expired on 15.4.2002. After his death, mutation No. 1074 dated 28.10.2003 was attested in favour of Raksha Rehaan, Akash Deep and Jai Deep devolving the property of Bal Krishan upon all three of them in equal shares. 3 On 2.6.2007 Raksha Rehaan filed an application before the Sub Registrar for registration of Will dated 7.4.2002 executed by her husband Bal Krishan bequeathing suit property in her favour and to attest mutation of property of Bal Krishan in her favour. 4 On 27.10.2007 Akash Deep presented a registered Will executed by Bal Krishan registered at Sr. No. 44, dated 9.3.2000 in the Office of Sub Registrar, Palampur, whereby Bal Krishan had purposed devolution of his property amongst his wife and two sons in equal shares. Thereafter, vide Order dated 30.11.2007 passed by Sub Registrar/Assistant Collector, claim of Raksha Rehaan, based on Will dated 7.4.2002, was rejected by the Revenue Authorities. 5 On 9.9.2008 Raksha Devi filed the present suit for declaration to the effect that she was owner in possession of the house situated in land comprised in Khata No. 476 min, Khatauni No. 694, Khasra No. 1783/1418 land measuring 0-05-60 hectares jamabandi 2002-03, situated in Mohal Aima Mauza Bundla, Tehsil Palampur, District 2 ( 2025:HHC:18170 ) Kangra HP, in pursuance of the Will of Shri Bal Krishan Rehaan executed on 7.4.2002, with consequential relief of permanent prohibitory injunction restraining the defendants (her sons) from interfering in the suit land/house in any manner whosoever. In alternative, decree for possession was also prayed, in case the defendants succeeded in occupying the suit property forcibly during the pendency of suit. 6 Suit was contested by Akash Deep and Jai Deep by engaging separate counsel and filing separate written statements on their behalf. The case set up by Akash Deep was that Bal Krishan had never executed Will dated 7.4.2002 and his mother (plaintiff), in order to oust him from the property, had filed the suit, whereas he was willing and ready to maintain and look after the old and ailing mother to the best of his capacity but some scrupulous interests did not let her live like a mother. According to him, mutation of inheritance was attested and sanctioned rightly but in written statement, he has not disclosed or based his case on the basis of registered Will executed by Bal Krishan on 9.3.2000. There is not even a whisper about execution of Will dated 9.3.2000 by Bal Krishan. 7 Defendant No.2 Jai Deep in his written statement stated that after death of Bal Krishan, suit land was devolved upon plaintiff and defendants in equal shares as per registered Will of Bal Krishan dated 9.3.2000 registered at Sr. No.44 in the Office of Sub Registrar, Palampur. He denied that Will dated 7.4.2002 was last Will executed by Bal Krishan 3 ( 2025:HHC:18170 ) with submission that alleged Will, if any, was in existence, then the same was result of fraud, misrepresentation and was a forged Will. It was further stated that co-sharers were in possession of their respective shares in the suit land and house, and plaintiff was not entitled for any decree of possession against replying defendant. 8 After completion of pleadings, following issues were framed by the Trial Court:- 1. Whether deceased Bal Kishan Rehaan executed valid and legal Will dated 7.4.2002 in favour of plaintiff, if so its effect? ....OPP 2. Whether the suit is bad for want of cause of action? …...OPD 3. Whether the plaintiff is estopped by her act and conduct from filing the suit? …...OPD 4. Whether the suit is not maintainable? …...OPD 5. Whether deceased Bal Krishan Rehaan has executed valid and legal Will in favour of plaintiff and defendants vide Will dated 9.3.2000? …..OPD 6. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? ….OPD 7. Relief. 9 Considering the evidence led by parties, suit filed by plaintiff was decreed vide judgment dated 26.7.2016 in the following terms:- “Judged in the light of my findings returned on aforesaid issues, suit of the plaintiff decreed for declaration in favour of plaintiff to the effect that plaintiff is owner and in possession of the house situated in land entered in Khata 4 ( 2025:HHC:18170 ) No.476 min, Khatoni No. 694, khasra No.1783/1418 land measuring 0-05-60 Hects. jamabandi for the year 2002-03 situated in Mohal Aima Mouza Bundla, Tehsil Palampur, District Kangra (H.P.) and thereby with directions to the revenue authorities to change the mutation entries. Thus, by way of consequential relief of permanent injunction, the defendants are thereby restrained from interfering in any way in the suit land.” 10 Being aggrieved by aforesaid judgment and decree, Jai Deep preferred appeal, whereas Akash Deep did not file any appeal, though he participated in the appeal preferred by Jai Deep being proforma-respondent/defendant No.1 and was duly represented by Advocate throughout. 11 After taking into consideration the material on record, appeal preferred by Jai Deep was dismissed by the Additional District Judge, Kangra at Dharamshala, District Kangra vide judgment dated 27.04.2018. 12 In aforesaid circumstances, present appeal has been preferred by Akash Deep. Jai Deep has not only refrained from filing the appeal against the judgment of Additional District Judge, but has also not opted to contest or participate in present appeal despite service and for his non-representation, he has been proceeded ex-parte on 11.12.2023. 13 The only issue raised by appellant herein is that the Trial Court has failed to consider the registered Will executed by Bal Krishan and has wrongly relied upon unregistered Will of Bal Krishan despite the 5 ( 2025:HHC:18170 ) fact that signatures of Bal Krishan in both Wills are entirely different indicating that Will dated 7.4.2002 is forged Will. 14 Taking into consideration the submissions made by learned counsel, the only question of law in issue, as learned Advocate has tried to make out, appears to be that Courts below have committed the illegality by ignoring the registered Will and accepting the unregistered Will, and for failure of comparison of signatures of deceased Bal Krishan in both appeals, which would have established that Will dated 7.4.2002 was a forged Will, has resulted into consideration of inadmissible evidence resulting into perversity. 15 After taking into consideration the submissions made by learned counsel for parties and going through record, it is evident that Will dated 9.3.2000 was never proved on record by defendants in accordance with law as required under Section 68 of the Indian Evidence Act. Though Registration Clerk from the Office of Sub Registrar was summoned and examined as witness by defendant No.2 Jai Deep as DW1, but Will was not exhibited either in the statement of DW1 Surjeet Singh on record or in the statement of DW2 Jai Deep. 16 No evidence was led by and on behalf of defendant No.1 Akash Deep. His counsel made a statement on 26.08.2025 that no evidence was intended to be led by defendant No.1 Akash Deep. 17 Further that in written statement filed by appellant, the reliance was never placed on registered Will dated 9.3.2000, rather case 6 ( 2025:HHC:18170 ) of appellant in written statement was set up on the basis of inheritance of property. 18 Learned counsel has submitted that this Court can compare the signatures of deceased Bal Krishan in two Wills i.e. Will dated 7.4.2002 Ext.PW2/A and Will dated 9.3.2000 Mark-A. 19 It is apt to record that on 25.02.2012 defendant No.2 Jai Deep had filed an application under Section 45 of Indian Evidence Act for obtaining opinion of Handwriting Expert qua the signatures of Bal Krishan on the unregistered Will dated 7.4.2002. The application was dismissed by the Trial Court vide order dated 8.5.2014. There is nothing on record to show that order dated 8.5.2014 was ever assailed. 20 On 12.11.2014, an application under Order 8 Rule 1 CPC was filed by defendant for placing on record original Will dated 9.3.2000 on record, certified copy whereof was already on record. For no objection of plaintiff, the application was allowed by the Trial Court vide order dated 4.4.2015 with observation that defendant had to prove the Will in accordance with law. Therefore, no evidence was led by defendants except deposition of Jai Deep on 26.8.2015. In his statement, Will dated 9.3.2000 was not proved. Evidence on behalf of defendants was closed on that day. 21 In absence of proving the Will dated 9.3.2000 on record in accordance with law, now in the second appeal that too without taking any step by appellant either before the Trial Court as well as the first 7 ( 2025:HHC:18170 ) Appellate Court or this Court to prove the said Will on record, I am of considered opinion that Will dated 9.3.2000 placed on record as Mark-D cannot be taken into consideration, much less to compare the signatures of Bal Krishan with signatures put by Bal Krishan in Will Ext.PW2/A. 22 There are no admitted signatures of Bal Krishan on record so as to compare the same with signatures of Bal Krishan put on Ext.PW2/A. 23 Learned counsel for appellant repeatedly submitted that appellant could not lead evidence before the Trial Court on account of blind and good faith on his brother Jai Deep and therefore, a chance be given to appellant to lead evidence to support his claim on the basis of Will by permitting him to file application under Order 41 Rule 27 CPC. 24 Aforesaid contention is not only misconceived but is baseless also. Appellant was being represented by separate counsel. He filed separate written statement. Evidence of appellant was closed by his counsel. No appeal was preferred by present appellant before the District Judge/Additional District Judge. No such plea ever before was taken. Moreover, now appellant is referring Will dated 9.3.2000, but no such plea was taken in written statement. Therefore, there is no foundation for permission to lead additional evidence related to Will dated 9.3.2000. Thus, this plea is not sustainable. 25 The Courts below have appreciated the evidence on record rightly in accordance with law and have not considered any inadmissible 8 ( 2025:HHC:18170 ) evidence and have also not ignored any admissible evidence proved and fact established on record in accordance with law. 26 In aforesaid facts and circumstances, I find that there is no merit in purported substantial question of law tried to be raised by learned counsel for appellant. No other point has been urged or raised. 27 It is apparent from aforesaid discussion that there is no question of law much less the substantial question of law involved in present matter for admitting the appeal for hearing. Accordingly, appeal is dismissed being devoid of any merit. (Vivek Singh Thakur), Judge. 16th June, 2025(MS) 9