2025:HHC:25371 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.293 of 2016 Decided on: 30.07.2025 Sansar Chand ...Appellant Versus Ghellar alias Gian Chand (deceased) through LRs ...Respondents Coram Hon’ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting? . For the appellant: Mr. Ajay Sharma, Senior Advocate with Mr. Atharv Sharma, Advocate. For the respondents: Ex-parte. Satyen Vaidya, Judge (oral) This Regular Second Appeal has been filed against the judgment and decree dated 08.04.2016, passed by learned Additional District Judge-II, Kangra at Dharamshala, Camp at Dehra in Civil Appeal No.8-G/2014, whereby the judgment and decree dated 30.09.2013, passed by learned Civil Judge (Junior Division)-II, Dehra, District Kangra in Civil Suit No.217/11/06 has been affirmed. 2. The brief facts necessary for adjudication of the appeal are that the plaintiff/appellant filed a suit for recovery of Rs.64,536/- against the original defendant, named, Ghellar alias 2 2025:HHC:25371 Gian Chand on the premise that said Ghellar alias Gian Chand had agreed to pay sum of Rs.200/- per month to the plaintiff in lieu of services rendered by the plaintiff. It was alleged that Ghellar alias Gian Chand had executed a Will dated 12.11.1993 in favour of appellant/plaintiff with a stipulation as under: “If for any reason I revoke this Will. I shall be liable to pay to Sansar Chand a sum of Rs. 200/- for each month in lieu of the services rendered in past” 3. The suit was contested by the defendant. Objections as to maintainability, cause of action, limitation, estoppel etc. were taken. On merits, it was admitted that the plaintiff had taken care of defendant Ghellar in the past, however, the enforceability of above stated clause in the Will was denied. It was alleged that the plaintiff had not returned house hold articles and belongings of Ghellar which were temporarily shifted to the house of plaintiff on account of repairs being carried in the house of Ghellar. 4. In the year 1995, Ghellar revoked the Will dated 12.11.1993 and executed a fresh will in favour of his nephews i.e. the respondents herein. 5. Defendant Ghellar alias Gian Chand died on 12.12.2006 during the pendency of suit before learned trial Court and his legal representatives i.e. the respondents herein were brought on record as defendants. 6. Learned trial Court framed the following issues: 3 2025:HHC:25371 “1. Whether the plaintiff is entitled to recover a sum of Rs.64,536/- along with interest, as prayed for?... OPP 2. Whether the plaintiff has no cause of action? OPD 3. Whether the suit in hand is time-barred?... OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the plaintiff is estopped from filing the suit in hand on account of his own acts, conduct and acquiescence?... OPD 6. Whether the suit in hand is false and frivolous, if so, its effects? OPD 7. Relief.” 7. Issues No.1, 4 and 5 were answered in negative, whereas issues numbers 2,3 and 6 were answered in affirmative. The suit of the plaintiff was accordingly dismissed with costs quantified at Rs.1500/-. 8. The first appeal filed by the plaintiff under Section 96 of the Code of Civil Procedure has also been dismissed by learned Additional District Judge-II, Kangra at Dharamshala (Camp at Dehra) vide impugned judgment and decree dated 08.04.2016, hence this appeal. 9. The appeal was admitted for hearing on following substantial questions of law vide order dated 08.11.2016: 4 2025:HHC:25371 “1. Whether both the Courts below erred in appreciating the provisions of law applicable pleadings of parties and evidence adduced by them in its right perspective thereby vitiating the impugned judgments and decrees? 2. Whether both the Courts below have misread and mis appreciated the oral as well as documentary evidence more particularly statements of PW-1 to PW-8 and documents Ext.PW-3/A and Ext. PW-8/A thereby vitiating the impugned judgments and decrees? 3. Whether original defendant Sh. Ghellar is bound by the terms of the Will dated 12.11.1993 in view of express promise having been extended but contrary findings rendered by the Courts below vitiated the impugned judgments and decrees? 4. Whether both the Courts below have misread and mis appreciated the provisions of section 25 (clause-c) of the Indian Contract Act thereby vitiating the impugned judgments and decrees? 10. Learned trial Court dismissed the suit of the plaintiff/appellant by holding that the recital made in the Will executed by defendant Ghellar, which was revoked by him during his life time, could not be enforced by the plaintiff. Learned trial Court further held that the willingness expressed by Ghellar in his Will to pay a sum of Rs.200/- every month in lieu of services rendered by the plaintiff in the past was just an enunciation and 5 2025:HHC:25371 once the Will was revoked, it did not become enforceable. After considering the terms of the Will sought to be enforced by way of suit, learned trial Court has held that the recital in the will could not be considered as a promise. 11. It was also recorded by learned trial court as a finding of fact that the Will dated 12.11.1993 was revoked and superseded by Ghellar in the year 1995 and it was not the case that plaintiff was not aware about this event. Thus, according to learned trial court the cause of action, if any, had arisen in favour of plaintiff in 1995 itself and the filing of suit belatedly in 2006 was highly time barred. 12. Learned first appellate Court affirmed the findings returned by learned trial Court. It has been held that since, the Will was unilateral document, it could not be termed as a contract. Learned first appellate Court also found the claim made by the plaintiff to be highly belated as the suit was filed in the year 2006 to enforce a cause which allegedly had arisen in the year 1995. 13. This Court while deciding the regular second appeal will not interfere in the findings of facts concurrently recorded by both the Courts unless those are shown to be perverse to the records. Having gone through the record, I find the findings of facts recorded by the Courts below to be in tune with the material 6 2025:HHC:25371 placed and proved on record. No perversity can be attached to such findings. 14. On the legal premise, also no interference is required in the impugned judgment and decree for the reason that no enforceable agreement had existed for which the suit could be filed. A promise to pay for services made in a Will, which subsequently stood revoked, could not have been enforced against the promiser much less his legal representatives. 15. A specific finding of fact as recorded by learned trial court is that the plaintiff was not aware about the recital in the Will dated 12.11.1993 whereby Ghellar had undertaken to pay Rs. 200/- per month for past services and thus, the said court has concluded that the recital did not become an enforceable promise capable of being enforced by way of suit. 16. For a proposal to take form of promise the assent of promisee is required and unless the assent is there, as in the case in hand, the next step that would form consideration will obviously be absent. The assent of plaintiff admittedly was missing as he was not aware about the recital in the Will till its revocation. 17. Thus, in nutshell, both the courts have found the recital in the Will of Ghellar dated 12.11.1993 to be not 7 2025:HHC:25371 enforceable and this court finds no reason to disturb the view formed by them which is a reasonable and possible view. 18. Further, the suit has rightly been held to be hopelessly time barred by both the courts. The cause of action has been found to be available to plaintiff in 1995, thus, the filing of suit in 2006 i.e. after long delay of nine years clearly was barred by time and again the findings recorded by both the courts in that behalf need no interference. 19. In result, the substantial questions of law, as noticed above, are answered in negative. 20. The appeal is accordingly dismissed being devoid of merits along with pending application(s) if any. No order as to costs. Decree sheet be drawn accordingly. 21. Records be sent back. (Satyen Vaidya) Judge July 30, 2025 (vt)