Tanjin Gialchhen vs Sh. Sonam Deva and Others

Deepak Gupta, J.—This Regular Second Appeal is directed against the judgment and decree dated 1.7.2000 passed by the Learned District Judge, Kinnaur Civil Division at Rampur Bushahr in Civil Appeal No. 42 of 1998 whereby he allowed the appeal filed by the Respondents (hereinafter referred to as the ''defendants'') and set aside the judgment and decree dated 10.9.1998 passed by the Learned Senior Sub Judge, Kinnaur at Reckong Peo in Civil Suit No. 4-1 of 1995 decreeing the suit of the Plaintiff.

Briefly stated the facts of the case are that the Plaintiff filed a suit in which his only prayer was that he and proforma Defendants No. 4 and 5 alone are entitled to the land belonging to their father, Sh. Bhagat Sain and the Defendants have no right, title or interest in the suit land.

The only question involved in this case is with regard to the validity of the Will allegedly executed by Sh. Bhagat Sain in favour of the Plaintiff and proforma Defendants No. 4 and 5. In fact, this was the only issue framed in the Learned Trial Court. The Learned Trial Court decided this issue in favour of the Plaintiff but the Learned Lower Appellate Court held that the Will was surrounded by many suspicious circumstances and the same has not been proved in accordance with law.

The question as to whether a Will has been legally proved or not is not a question of law but a pure question of fact and in my view, no question of law much less a substantial question of law arises in this case. However, to satisfy the conscience of this Court and at the instance of the Learned Counsel for the Appellant, I have gone through the evidence and the Will itself.

The Will Ext. PW1/A is a typed document running in two pages. It appears to be a carbon copy. It bears the signatures of the testator Bhagat Sain and the witnesses Thakur Lal, PW/3 and Sohan Singh, PW/4 on both the pages in the margins and on the second page also at the bottom. The signatures occur twice under each heading meaning thereby that there are two signatures of each of these three persons on the first page and four signatures on the second page. The recital in the Will is that Sh. Bhagat Sain signed this Will which had been read over and explained to him in vernacular on 21.6.1993 in the presence of the witnesses. At the bottom of the Will, there is an endorsement "scribed and interpreted by Bhag Singh Negi, Advocate, Reckong Peo, Kinnaur".

The admitted case of the parties is that in fact, Bhagat Sain was not in a position to leave his village since he had an injury on his leg and even according to the Plaintiff, Bhagat Sain never went to Reckong Peo to get the Will drafted.

In fact, the Plaintiff states that the Will was drafted in village Thangi at their house. This statement of the Plaintiff is totally false and belied by the statement of DW/2 Sh. Bhag Singh, Advocate who has clearly stated that the document Ext. PW1/A was drafted and typed at Reckong Peo. At this stage alone, it would be pertinent to make a reference to the statement of DW/2 who has stated that he does not know who was the person who came to get the Will drafted. He was also not aware whether the witnesses and the testator signed the Will once or twice. This witness has clearly stated that as per the endorsement made at the end of the Will, it appears that the testator and the witnesses were present at Reckong Peo. However, as stated above, the testator could not have been at Reckong Peo since he even according to the Plaintiff was unwell. The witnesses have clearly stated that they never went to Reckong Peo. Therefore, the question of the Will being executed at Reckong Peo does not arise.

The second version as given by the Plaintiff that the Will was drafted in the village also does not appear to be correct since the Will has been typed out and as admitted by DW/2 was prepared at Reckong Peo. Who instructed Sh. Bhag Singh Negi, Advocate, DW/2 to prepare the Will and who imparted with the instructions as to whom the property was to be bequeathed? These questions remain totally unanswered.

The third version with regard to the Will is given by PW/2 Sh. Gian Chand who at that time was the Tehsildar, Pooh and was also having jurisdiction over Moorang under which Tehsil Thangi also falls. According to this witness, he was called by the Plaintiff to his village from Pooh. He translated the contents of the Will to the testator and thereafter, the testator and the witnesses signed the Will. According to him, the Will had already been signed but he got this Will signed again both from the testator and the witnesses. In cross-examination, this witness has admitted that as required under the Registration Act, no application was filed before him being Sub Registrar to go to the village. No fee as required by law was deposited. There is nothing on record to show that other than making an oral request, the Plaintiff had filed any proper application for taking the Sub Registrar to the village.

When a Sub Registrar goes at the request of any party to its home, he is expected to go in his official capacity after following the proper procedure. The purpose of taking the Sub Registrar is to register the document. Admittedly, the Will has not been registered. It appears that the Sub Registrar did not even take the relevant registers with him. It is well known fact that when a Sub Registrar goes at the request of any party to the home of such party then he does not go alone. Some clerk or dealing hand as well as a peon would normally accompany him and the purpose of such visit is to ensure that not only the document is executed but the same is registered at the spot. This has not been done in the present case. Therefore, it appears that Sh. Gian Chand, PW/2 went to the village of the Plaintiff in his personal capacity and his version that he went as Tehsildar is totally false. Therefore, not much reliance can be placed on his statement.

The Plaintiff in his cross-examination admitted that the Will was prepared at Reckong Peo on 21.6.1993. According to him, it was brought back to village Thangi and on the next day, i.e., 22.6.1993, the same was got signed by the testator and the witnesses. However, PW/3 Thakur Lal has stated that he signed the Will before PW/2 Gian Chand on 22.8.1993 and prior to that he had signed the Will in the village about 6-7 days earlier which would mean on 20/21.8.1993. Further he stated that he does not know English and when the Will was signed 6-7 days earlier in the village, one person who is resident of village Thangi had explained the Will in vernacular to the testator but he could not name the said person. This is the fourth version with regard to the Will.

Interestingly, there is another version given by PW/4 who stated that he had only signed the Will in front of the Tehsildar, PW/2 and before that he had never signed the Will. He further stated that nobody had ever read over and explained the Will to him in Hindi.

In view of these totally contradictory versions, the Learned Courts below were fully justified in holding that the Will had not been proved. This pure finding of fact cannot be interfered with in these proceedings. Therefore the appeal is dismissed. No order as to costs.