2025:HHC:24526 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.158 of 2018 Reserved on: 22.07.2025 Decided on: 28.07.2025 Kishori Lal ...Appellant Versus Gulab Singh & others ...Respondents Coram Hon’ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting? No For the appellant: Mr. Rajiv Sirkeck, Advocate. For the respondents: Mr. G.D. Verma, Senior Advocate with Mr. Summit Sharma, Advocate, for respondents No.1 to 7. Satyen Vaidya, Judge This regular second appeal has been filed by the appellant against judgment and decree dated 28.11.2017, passed by learned Additional District Judge (II), Mandi, in Civil Appeal No.35/2016, whereby the judgment and decree dated 01.06.2016 passed by learned Civil Judge (Junior Division), Chachiot at Gohar, District Mandi in Civil Suit No.11 of 2008 has been affirmed. 2. The appellant herein was one of the plaintiffs in the original Court and his suit has been dismissed by the original as well as first appellate Court. The other plaintiff was Chuharu son of Jethu, who now finds place in the array of respondents as 2 2025:HHC:24526 respondent No.17 as he did not prefer to assail the judgment and decree passed by learned trial court. 3. The parties, hereafter shall be referred by same status as they held before the learned trial Court. 4. The brief factual background of the case is that the grandfather of the plaintiff, named Jethu was owner of immovable property. Jethu had six sons, namely Hari Singh, Kirpa Ram, Gulab Singh, Dumnu Ram, Chuharu and Mast Ram. 5. The plaintiff is the son of Mast Ram, who had predeceased Jethu. 6. Jethu bequeathed his entire property in favour of his grandsons Dhameshwar and Prem Chand both sons of Hari Singh to the extent of 1/5th share, Khem Singh and Devinder both sons of Kirpa Ram to the extent of 1/5th share, Dhananjay and Susheel Kumar both sons of Gulab Singh to the extent of 1/5th share and to his sons Dumnu Ram and Gulab Singh to the extent of 1/5th share each, by way of Will dated 07.10.1997. 7. The plaintiff and his uncle Chuharu were excluded from inheritance. 8. Jethu died on 25.05.2000. After his death, mutation No.738 was attested in favour of beneficiaries of Will dated 07.10.1997 vide mutation order dated 21.06.2000. 3 2025:HHC:24526 9. The plaintiff and Chuharu filed the suit challenging Will dated 07.10.1997 in the Court of Civil Judge (Junior Division), Chachiot at Gohar, District Mandi (hereinafter referred to as “trial Court”) on 01.04.2008. The challenge to the Will was made on following grounds: (a) That the defendants had managed the Will by manipulation. (b) The defendants had colluded with the scribe and attesting witnesses of the Will. (c) The Will did not have consent and knowledge of the testator. (d) The testator was of old age and feeble health. He was not mentally capable of expressing free mind. (e) The will was surrounded by suspicious circumstances such as: (i) the beneficiary sons of Jethu had actively participated in execution of Will and (ii) the plaintiff and Chuharu were disinherited without there being any reasonable cause. (f) Jethu was not competent to execute the Will in respect of the suit property as the said property was coparcenary Joint Hindu Family Property. 10. Plaintiff also challenged the sale deeds through which Dhameshwar and Prem Chand both grandsons of Jethu had sold parts of the land inherited by them to third parties for consideration. 4 2025:HHC:24526 11. In the plaint, it was specifically averred that after the death of Jethu, one of his sons, namely, Dumnu had disclosed to the plaintiff that the mutation of inheritance had been attested in favour of all the legal heirs of deceased Jethu, including the plaintiff. It was only in the month of December 2007 that the plaintiff acquired knowledge about the execution of Will by Jethu. As per the plaintiff, he had visited the “Patwarkhana” (office of Patwari) in December 2007 for the purposes of getting his share partitioned and at that juncture the Patwari had disclosed about the factum of Will executed by Jethu. 12. The plaintiff had also contended that thereafter he collected the relevant documents and requested the defendants to admit his claim to the suit property but on their refusal, he had to file the suit. 13. The suit was contested by the defendants on the grounds that the suit property was exclusively owned by Jethu. It was submitted that the father of Jethu and Twaru, namely, Gyahru was the exclusive owner of immovable property, which after his death devolved upon his sons Jethu and Twaru and daughters, namely, Changi, Devki and Munni. Munni had relinquished her share in favour of her brothers. The sons of Gyahru i.e. Jethu and Twaru had mutually partitioned the land 5 2025:HHC:24526 and thus, the suit land could not be termed as coparcenary or Joint Hindu Family Property. 14. The objections as to maintainability of the suit, non- compliance of provisions of order 7 Rule 3 of the Code of Civil Procedure, non-joinder of necessary parties, limitation, estoppel, valuation etc. were raised. 15. On merits, the averments made in the plaint were denied in generality. It was submitted that the Jethu had executed the Will voluntarily as he was having sound disposing mind. The Will was registered before the Registrar in presence of Jethu. The allegations of manipulation and collusion etc. have also been denied. 16. On the pleadings of the parties, learned trial Court framed the following issues: “1. Whether the suit land was earlier owned and possessed by Gyahru Son of Sh. Somphi and the suit land is ancestral and coparcenary property of the plaintiffs, defendants No.1 to 7 and proforma defendants? OPP 2. Whether the Will No.89 dated 7.10.1997 is wrong, illegal null and void, as prayed for? OPP 3. Whether the sale deed No.494 dated 28.12.2002, sale deed No.105 dated 7.3.2005, sale deed No.216 dated 13.05.2005 and sale deed No.331 dated 23.08.2005 to the defendants No. 10 to 15 are wrong, illegal, null and void as prayed? OPP 4. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction as prayed for? OPP 6 2025:HHC:24526 5. Whether the suit land has been partitioned by way of family arrangement in between Jethu and Twaru. If so it's effect? OPD 5-A Whether the Will dated 7.10.1997 executed by Sh. Jethu Ram is a genuine document and not surrounded with suspicious circumstances, as alleged? OPD 6. Whether the present suit is not maintainable, as alleged? OPD 7. Whether the present suit is bad for non- compliance of mandatory provision as contained under Order 7 Rule 7 of CPC? OPD 8. Whether the present suit is bad for non-joinder of necessary parities? OPD 9. Whether the present suit is time barred, as alleged? OPD 10. Whether the plaintiffs have concealed material facts and are estopped to file the present suit by their act and conduct as alleged? OPD 11. Whether the present suit has not been rightly valued for the purpose of court fees and jurisdiction as alleged? OPD 12. Whether the defendants number 10 to 15 are bonafide purchasers of the suit land, as alleged? 13. Relief.” 17. Issues No.5, 5-A, 6 and 12 were decided in affirmative, whereas all other issues were decided in negative and resultantly the suit of the plaintiff was dismissed. 18. The first appeal filed by the plaintiff also met the same fate as learned first appellate Court on re-appreciation of evidence affirmed the findings returned by learned trial Court. 7 2025:HHC:24526 19. The instant appeal was admitted on 28.09.2018 on the following substantial question of law: “Whether on account of mis-appreciation of the pleadings and law and also misreading of the oral as well as documentary evidence available on record, the findings recorded by both Courts below are erroneous and, as such, the judgment and decree impugned in this appeal being perverse and vitiated is not legally sustainable?” 20. I have heard Mr. Rajiv Sirkeck, learned counsel for the appellant, Mr. G.D. Verma, learned senior Advocate for the respondents and have also gone through the record carefully. 21. Learned counsel for the appellant laid entire stress on the contents of Will dated 07.10.1997 and the statements of the witnesses i.e. DW-5 Tara Chand (attesting witness of the Will), DW-7 Gulab Singh (son of Jethu), DW-4 Keshav Ram (retired Tehsildar before whom the Will was registered), DW-9 Girdhari Lal (Scribe of the Will) and DW-6 N.K. Sharma (identifier of the testator in Will), to urge that the due execution of Will in accordance with law was not proved. He contended that the contents of Will and the statements of aforesaid witnesses were so discrepant that the same could not be treated as valid proof of execution of the Will. 22. It has also been contended that the Will was shrouded with suspicious circumstances and the defendants had 8 2025:HHC:24526 failed to clear the same. He would submit that the factum of active participation of defendants in execution of Will was proved, which by itself was sufficient to hold the Will invalid. He further contended that the plaintiff and his uncle Chuharu were excluded from the Will without any justifiable cause, which also suggested that the Will was not genuine or did not have the consent and willingness of the testator. 23. It has also been pointed out that the evidence on record clearly suggested that Jethu was aged about 83 years at the time of execution of Will and his vision and hearing faculties were proved to have been impaired considerably. 24. On the other hand, learned Senior Advocate for the defendants has supported the impugned judgment and decree. He would contend that the suit was hopelessly time barred. The averment of having acquired knowledge of the Will in the year 2007 has been alleged to be imaginary. According to defendants, plaintiff was aware about the execution of Will by Jethu right from the beginning. 25. Learned Senior Advocate further submitted that the mutation on the basis of Will was attested on 21.06.2000, which was a notice to the general public. It has also been pointed out that before the filing of the suit by the plaintiff, defendants Dhameshwar and Prem Chand had sold parts of the suit land to 9 2025:HHC:24526 different persons by way of four separate sale deeds, which again were notice of the fact of such sales to the general public. The plaintiff was fully aware about the execution of sale deeds, still he failed to file the suit within a period of limitation. 26. Stress was also laid on the limited jurisdiction of the Court while hearing a second appeal under Section 100 of the Code of Civil Procedure. He submitted that in such jurisdiction, this Court does not hold power to interfere in the concurrent findings of fact recorded by both the Courts, more particularly, when such findings were borne from the record and cannot be said to be perverse or palpably illegal. 27. According to learned Senior Advocate, the witnesses were not supposed to deliver parrot like version. The minor discrepancies ought to have crept in naturally and merely for such reason no inference could be drawn as to the Will being not the legal and genuine document. 28. It was further urge that the view taken by both the Courts is a possible view emerging from the facts and circumstances proved on record and it should not be substituted only for the reason that some other view may also be possible. 29. Having considered both the rival submissions I proceed to hold as under. 10 2025:HHC:24526 30. Learned trial Court while deciding issues No.1 and 5 against the plaintiff has held that the entire suit land was owned and possessed by Gayahru and after its inheritance by Jethu and other heirs of Gayahru Ram, it did not take the shape of coparcenary property for entry of female heirs and more particularly, when there was a family partition inter se Jethu and Twaru. Learned first appellate court has also affirmed the view taken by learned trial court. In this appeal no serious effort has been made on behalf of appellant/plaintiff to challenge the concurrent findings on issues numbers 1 and 5. Thus no interference is required. 31. The Will executed by Jethu has been held to be legal and valid document by learned trial Court while deciding issues No.2 and 5-A. Learned trial Court after discussing the entire material evidence had concluded that the execution of Will was successfully proved by the defendants. 32. Learned trial Court has considered the statements of attesting witness Shri Tara Chand (DW-5), Identifier Sh. Naresh Kumar Sharma (DW-6), Retired Tehsildar Sh. Keshav Ram (DW- 4), and the scribe of the Will Sh. Girdhari Lal (DW-9). It was found that the mental faculty of Jethu could not be said to have been affected in any manner merely because of his old age and impairment in visual and hearing faculties. The factum of 11 2025:HHC:24526 registration of Will has also weighed with learned trial Court. The exclusion of some of the natural heirs from inheritance and participation of beneficiaries, by themselves have not been considered to be suspicious circumstances so as to invalidate the Will. 33. The impugned judgment passed by learned first appellate Court also reveals that the said Court had also gone into detailed analysis of facts on the basis of evidence on record and thereafter the findings of fact recorded by learned trial Court have been affirmed. 34. In order to test the correctness of the findings of fact, I have examined the entire evidence and have not find any perversity in the judgments passed by both the Courts. The findings of fact recorded concurrently by both the Courts are clearly borne from the record. 35. The Will was attested by two witnesses, namely, Tara Chand (DW-5) and Dhan Dev. The defendants have examined Tara Chand to prove the execution of the Will. This witness had deposed that the Will was scribed at the instance of Jethu. It was read over and explained by the Scribe Girdhari Lal (DW-9) to the testator and thereafter the testator had affixed his thumb impression. The attesting witness had also thereafter appended their respective signatures on the Will. 12 2025:HHC:24526 36. The other attesting witness Dhan Dev was stated to have died. Thus, the requirements of Section 68 of Indian Evidence Act were fulfilled. 37. Though, DW-5 Tara Chand in his examination-in- chief had stated that the Will was scribed by Document Writer Girdhari and it was got written by the son of Twaru and that Jethu was not aware as he was illiterate, but the said witness had simultaneously stated that the contents of Will were read over and explained by the Document Writer and thereafter Jethu had affixed the thumb mark after admitting the contents to be correct. DW-9 Girdhari Lal also deposed that he had scribed the Will on the asking of testator Jethu. The Will was read over and explained to Jethu, who had affixed his thumb impression on the Will. The observations made by DW-5 with respect to illiteracy and simplicity of Jethu and for that matter son of Twaru having got written the same cannot be read out of context. The statements of the witnesses have to read in entirety. It is never safe to draw inference only from an extract from the entire statement. The most important aspect remains that both the witnesses i.e. DW-5 Tara Chand and DW-9 Girdhari Lal were in unison that the contents of Will were read over and explained to Jethu by DW-9 Girdhari Lal and after understanding the same, Jethu had affixed his thumb impression on the same. None of these witnesses had even 13 2025:HHC:24526 indicated as to infirmity, if any, found or smelled by them in the mental faculty of the testator. 38. From the cross-examination of DW-5 and DW-9, what could be inferred is that the sons of Jethu were accompanying him at the time of execution of Will. That itself cannot be a circumstance to hold the Will invalid, unless it was proved that the presence of the beneficiaries had influenced the mental faculty of testator in such a manner that he could not understand the meaning and import of his act and conduct. The evidence on record does not suggest such an inference even remotely. Merely, the fact that Jethu was 83 years of age will not imply that he was not having sound disposing mind. Noticeably, this was not even the allegation of the plaintiff. Rather, while answering the questions in cross-examination, the plaintiff admitted that Jethu was having sound disposing mind till his death. It cannot be ignored that Jethu remained alive for about three years after the execution of Will. It is also not the case of the plaintiff that the thumb impression on the Will was not that of Jethu or Jethu was not present at the time of execution of Will. Thus, if Jethu was having sound disposing mind and he had put his thumb impression in acknowledgement of the contents of the Will, the Will cannot be said to be an invalid document. 14 2025:HHC:24526 39. The Will was also registered before the Sub Registrar on the same day. The Sub Registrar has been examined as DW-4. The plaintiff has not been able to prove that the registration of Will was not done in presence of Jethu. There is presumption to the endorsement made on a registered document by the Registrar and such presumption has not been rebutted by the plaintiff. Even otherwise, since the Sub Registrar has been produced as a witness and nothing contrary could be elicited by the plaintiff despite long cross-examination, no fault can be found with the findings of fact recorded by both the Courts. 40. It can also be noticed that mere participation of beneficiaries would not nullify the effects of the Will, more particularly, when there is nothing on record to shake the conscience of the Court on the question of validity of the Will. Similarly, exclusion of a few of the natural heirs from inheritance does not vitiate the Will. The execution of Will itself gives a reason for assumption that the testator did not want his estate to be inherited in the natural course. 41. On the issue of limitation, learned trial Court has negated the contention of the defendants. The plaintiff has been believed on the aspect that he had acquired the knowledge about the Will in the year 2007. The plaintiff while deposing as PW-1 had categorically stated in examination-in-chief that he was not 15 2025:HHC:24526 aware about the execution of Will till 2007 and his testimony on this aspect has not been challenged at all. Thus, no fault can be found with the findings of learned trial Court as affirmed by learned first appellate Court. 42. In light of above discussion, I do not find any mis- appreciation or misreading of oral and documentary evidence by both the Courts. The substantial question of law is accordingly answered in negative. 43. In result, the appeal fails and is dismissed with no order as to costs. Decree sheet be prepared accordingly. 44 Pending application(s), if any, shall also stand disposed of. ( Satyen Vaidya ) Judge 28th July 2025 (vt)