The validity of a Will must be established by credible evidence, and registered Wills take precedence over unregistered ones, especially when surrounded by suspicious circumstances.

JUDGMENT :

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 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 However, the first Will dated 22.03.1995 was revoked/cancelled by Likhu Ram by executing a subsequent Will dated 16.08.1996 whereby Likhu Ram had bequeathed his property in favour of Chuni Lal, Manohar Lal, Dev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.

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.

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