Himachal Pradesh High Court
Reserved On: April 7 vs General Public & Others on 21 April, 2025
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1 2025:HHC:10402
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
RSA No. 252 of 2016
Reserved on: April 7, 2025
Date of Decision: April 21, 2025
Soma Devi & others ....Appellants
Versus
General Public & others ..Respondents.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes
For the Appellants: Ms.Suman Thakur, Advocate.
For the Respondents: Respondent No.1 is ex parte vide order
dated 20.12.2024.
Mr.Arun Sehgal, Advocate, for respondents
No.2 to 8.
Ms.Seema Sharma, Deputy Advocate
General, for respondent No.9.
Vivek Singh Thakur, J.
Appellants-plaintiffs have preferred this appeal against
judgment and decree dated 02.04.2012, passed by District Judge,
Hamirpur, H.P., in Civil Appeal No.57 of 2009, titled as Soma Devi &
others vs. General Public & others, whereby judgment and decree
dated 03.03.2009, passed by Civil Judge (Junior Division), Court
No.III, Hamirpur, H.P., in Civil Suit No. 146 of 2001, RBT No.870 of
2004, titled as Vijay Kumar vs. General Public & others, has been
affirmed dismissing claim of the appellants to declare Will dated
1
Whether reporters of the local papers may be allowed to see the judgment?
2 2025:HHC:10402
12.02.1997 alleged to be executed by Likhu Ram, is a valid Will and
liable to be registered.
2. On 03.10.2016 appeal was admitted on the following
substantial question of law:-
“1.Whether on account of misappreciation of the pleadings
and 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 the main appeal being perverse is vitiated and
not legally sustainable?
3. It is case of the appellants that Likhu Ram was having
two wives and respondents No.2 to 8 were children of first wife,
whereas, Vijay Kumar (predecessor-in-interest of present
appellants) and Kashmir Singh were sons of second wife. Likhu Ram
had expired on 13.02.1997. According to respondents No.2 to 8,
Likhu Ram had executed a Will dated 22.03.1995 to bequeath his
property in favour of Chuni Lal, Vijay Kumar and Kashmir Singh for
the first time. It was registered in the office of Sub-Registrar,
Hamirpur. However, the first Will dated 22.03.1995 was
revoked/cancelled by Likhu Ram by executing a subsequent Will
dated 16.08.1996 whereby Likhu Ram had bequeathed his property
in favour of Chuni Lal, Manohar Lal, Dev alias Baldev with specific
reference of cancellation of earlier Will dated 22.03.1995 and
exclusion of other legal heirs.
4. Claim of Vijay Kumar is that his father Likhu Ram was
residing with him during last stage of his life and on 12.02.1997 he
had executed a valid Will in favour of Vijay Kumar and Kashmir
Singh.
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5. For the registration of aforesaid Will dated 12.02.1997,
Vijay Kumar filed an application under Sections 40 and 41 of Indian
Registration Act, 1908 before Sub-Registrar, Hamirpur, H.P., with
submission that it, being a valid Will, was liable to be registered.
Registrar vide order dated 22.02.2000 had rejected application filed
for registration of Will dated 12.02.1997.
6. Being aggrieved, appellants-plaintiffs filed appeal under
Section 72 of Indian Registration Act, 1908, before Registrar,
Hamirpur, which was also dismissed on 10.04.2001.
7. Aforesaid orders of Sub-Registrar and Registrar were
assailed by filing Civil Suit under Section 77 of Indian Registration
Act, 1908, by alleging that the act of non-registration of Will by Sub-
Registrar as well as Registrar, Hamirpur, was arbitrary, illegal and
against the provisions of law and seeking declaration to the effect
that Will executed by Likhu Ram in favour of Vijay Kumar and
Kashmir Singh on 12.02.1997 was a valid Will and was liable to be
registered.
8. Giving opportunities to the parties to depose and lead
evidence, after hearing the arguments, suit was dismissed.
9. Appeal preferred by Vijay Kumar, wherein on account
of death of Vijay Kumar, his legal heirs, who are present appellants,
were also substituted in place of deceased Vijay Kumar. Appeal
preferred by appellants-plaintiffs (successors-in-interest of Vijay
Kumar) was also dismissed. Hence, present appeal.
10. I have heard learned counsel for the parties and also
gone through the record.
4 2025:HHC:10402
11. Plaintiff-Vijay Kumar appeared in the witness box as
PW.1 and examined five witnesses, including him as plaintiff’s
evidence.
12. Private defendants had examined eight witnesses,
including defendant No. 3 Manohar Lal as DW-1.
13. Plaintiff in evidence has produced copy of order dated
10.04.2001 Ex. .PW-1/A whereby Registrar, Hamirpur, H.P., had
dismissed appeal preferred by plaintiff-Vijay Kumar against non-
registration of Will by the Registrar.
14. Defendants have placed on record copy of Will dated
16.08.1996 (Ex.DW.5/A); endorsements on Will dated 16.08.1996
(Ex.DW.5/B to Ex.DW.5/D); copy of order dated 22.06.2000 (Ex.D-1);
copy of order dated 10.04.2001 (Ex.D-2); copy of notice dated
02.01.1996 (Ex,DW.6/A); and copy of Roznamcha of Patwari dated
01.03.1997 (Ex.DW.2/A).
15. Whole controversy revolved around genuineness of Will
dated 12.02.1997 and impact of Will dated 16.08.1996.
16. Admittedly, Will dated 16.08.1996 is a registered Will,
whereas, Will dated 12.02.1997 is an unregistered Will.
17. Likhu Ram had expired on 13.02.1997. It has come on
record that after the death of Likhu Ram, Vijay Kumar approached
the Patwari for attestation of mutation on the basis of Will dated
22.03.1995, wherein property was proposed to be bequeathed
between Chuni Lal, Vijay Kumar and Kashmir Singh. Regarding this
fact entry was made by Patwari in his Rapat Roznamcha dated
01.03.1997 (Ex. DW-2/A). However attestation of mutation on the
basis of Will dated 22.03.1995 was opposed by private defendants
5 2025:HHC:10402
by execution of subsequent Will dated 16.08.1996 (Ex. DW-5/A).
Thereafter, plaintiff-Vijay Kumar came with a plea that Likhu Ram
had executed last valid Will on 12.02.1997 in favour of Vijay Kumar
and Kashmir Singh. Accordingly, he applied for registration thereof
and on dismissal of application as well as appeal, he preferred the
suit wherefrom present appeal has arisen.
18. It is claim of the appellants that it was not Vijay Kumar
who produced Will dated 22.03.1995 before Patwari but it were
defendants who produced the same to defeat right of Vijay Kumar
and Kashmir Singh accruing in their favour on account of execution
of a valid Will dated 12.2.1997 by Likhu Ram before his death which
was the latest Will.
19. Claim of private defendants is that Will dated
12.02.1997 is surrounded by suspicious circumstances and keeping
in view the date and time of its alleged execution, date and time of
death of Likhu Ram, and also for production of Will dated
22.03.1995 at first instance, by Vijay Kumar before Patwari and
disclosure of alleged latest Will dated 12.02.1997 lateron, and these
circumstances definitely establish that Will dated 12.02.1997 is a
fabricated Will.
20. Learned counsel for the appellants submits that
evidence has not been interpreted and read by the Courts below in
its right perspective resulting into a wrong conclusion that Will
dated 12.02.1997 is not valid Will, particularly for believing alleged
production of Will dated 22.03.1995 by Vijay Kumar before Patwari,
and this conclusion is contrary to the record.
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21. Learned counsel for the defendants has supported the
impugned judgments and decrees for the reasoning assigned
therein.
22. The claim of the appellants is that Patwari, who
allegedly recorded Roznamcha dated 01.03.1997 (Ex.DW.2/A) was
not having acquaintance with Vijay Kumar and, therefore, he was
not in a position to identify him as, in his cross-examination also, he
has admitted that he was not knowing Vijay Kumar personally and,
therefore, it is contended that Roznamcha dated 01.03.1997 is a
suspicious document which has been concocted and fabricated by
defendants in connivance with DW.3-Balwant Singh by producing
Will dated 22.03.1995 themselves with false claim that one of them
was Vijay Kumar. This plea of the appellants is not sustainable as
Vijay Kumar while appearing as PW.1, in his cross-examination, has
categorically admitted production of Will dated 22.3.1995 by stating
that it was correct that when he went to the Patwari then, he had
produced Will dated 22.03.1995. Admitted facts need not to be
proved by leading further evidence. Thus, it has been clearly
established on record that after death of Likhu Ram, Vijay Kumar
had produced Will dated 22.03.1995 before Patwari for inheritance
of the property of Likhu Ram in terms of the said Will.
23. Private defendants have proved execution and
registration of Will dated 16.08.1996 as Ex.DW.5/A, wherein it has
been clearly stated that earlier Will dated 22.03.1995 executed by
Likhu Ram stood cancelled for execution of Will dated 16.08.1996
(Ex. DW-5/A). It is note-worthy that when this Will (Ex. DW-5/A) was
produced by private defendants, Vijay Kumar came up with plea
7 2025:HHC:10402
that another latest Will dated 12.02.1997 was also executed by
Likhu Ram.
24. It is also undisputed fact that Kashmir Singh, who
allegedly was present at the time of execution of Will dated
12.02.1997, did not put forth any claim on the basis of the said Will.
It is also apt to note that Will dated 12.02.1997 is claimed to have
been executed after 4.00-5.00 p.m. on 12.02.1997 and Likhu Ram
had expired in the morning of 13.02.1997.
25. It stands proved, particularly for admission by Vijay
Kumar as PW.1, that it was he who produced Will dated 22.03.1995
before the Patwari. In case, he (Vijay Kumar) was having latest Will
dated 12.02.1997 executed by Likhu Ram in his favour alongwith
Kashmir Singh then, there was not prudent reason preventing him
from producing the said Will before Patwari at the first instance,
however contrary, at the first instance he produced Will dated
22.03.1985 before Patwari when this was objected by private
defendants by producing subsequent registered Will dated
16.08.1996, Vijay Kumar came with latest Will dated 12.02.1997.
26. It is also apt to record that alongwith this Regular
Second Appeal, appellants have also filed an application under
Order 41 Rule 27 CPC (CMP No. 8307 of 2016) for producing and
proving original Will dated 12.02.1997. Even if, original Will dated
12.02.1997 is taken on record in evidence, it would neither be
helpful to the appellants to establish their case nor it would be a
relevant document for deciding the appeal as production and
proving this document on record will not cause any change in facts
which have demonstated the claim of Vijay Kumar for his own
8 2025:HHC:10402
admission, because Vijay Kumar, at the first instance, had produced
Will dated 22.03.1995 but not Will dated 12.02.1997. Had this Will
been in existence at the time of death of Likhu Ram, there was no
reason for Vijay Kumar to approach Patwari alongwith Will dated
22.03.1995, which had already been revoked by Likhu Ram at the
time of execution of Will dated 16.08.1996. Therefore, document
proposed to be placed and proved on record in evidence of plaintiff
is neither necessary nor required for complete and final adjudication
of present matter as its presence or absence in evidence on record
will be of no consequence for having no bearing on the merits of the
case. Accordingly, application is liable to be rejected and dismissed
accordingly.
27. In aforesaid facts, definitely evidence of defendants is
inspiring confidence, whereas, evidence led by Vijay Kumar is itself
demolishing case of the appellants. Therefore, there is no
misleading or misinterpretation of the evidence on record and there
is no perversity in the impugned judgments and decrees warranting
interference under Regular Second Appeal. Substantial question
framed is answered accordingly.
28. Resultantly, appeal is dismissed, so also pending
application(s), if any.
(Vivek Singh Thakur),
Judge.
April 21 , 2025
(Purohit)
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