R. S. A. No. 2320 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2320 of 2009 (O&M) Date of Decision : July 22, 2010 Balbir Kaur @ Balvir Kaur .... Appellant Vs. Kewal Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Amarjit Markan, Advocate for the applicant-appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 7929-C of 2010 : Allowed as prayed for, subject to all just exceptions. C. M. No. 7930-C of 2010 : This is application for disposing of the appeal in terms of compromise (Annexure P-1) allegedly effected by the appellant with respondent no.1 only. The prayer made in the application cannot be accepted because the compromise has not been effected with respondents no.2 and 3, who are equally interested in the subject matter of the suit with respondent no.1. Thus, there has been no lawful compromise between the R. S. A. No. 2320 of 2009 (O&M) 2 parties. The application is, therefore, misconceived and is accordingly dismissed. Main Appeal : This is second appeal by Balbir Kaur @ Balvir Kaur – defendant, who was successful in the trial court, but has been unsuccessful in the lower appellate court. Ram Kaur (since deceased) was owner of 24 kanals 07 marlas land being half share of 48 kanals 14 marlas land, as described in the plaint. Defendant-appellant is daughter of said Ram Kaur, whereas respondents- plaintiffs are sons of Jagir Kaur – another pre-deceased daughter of Ram Kaur. In view of said relationship, plaintiffs claimed half share by inheritance in the land left by Ram Kaur, whereas defendant-appellant set up Will dated 30.03.2001, allegedly executed by Ram Kaur in her favour. The said Will has been challenged in the suit. Learned Civil Judge (Junior Division), Barnala held the Will in favour of the defendant to be proved and therefore, dismissed the plaintiffs' suit. However, learned Additional District Judge, Barnala, vide judgment and decree dated 20.04.2009, allowed first appeal preferred by the plaintiffs and held the aforesaid Will to be forged and fabricated and consequently, decreed the plaintiffs' suit. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the R. S. A. No. 2320 of 2009 (O&M) 3 case file. Learned counsel for the appellant contended that the Will in question has been proved by examining attesting witnesses and scribe of the Will. The contention cannot be accepted. Even the trial court held that the Will was not bearing right thumb impressions of Ram Kaur (since deceased), although according to witnesses, she had appended right thumb impressions on the Will. It thus becomes manifest that the execution of the Will by Ram Kaur is not proved. There is also material alteration in the Will as in the date, year has been changed from 2000 to 2001. The trial court conjectured that left thumb impression of Ram Kaur might have been affixed being illiterate woman. However, scribe Gurmail Singh (DW-3) and attesting witness Gurdev Singh (DW-4) specifically stated that Ram Kaur had affixed right thumb impressions on the Will. The trial court thus misappreciated the evidence without there being any basis to speculate that Ram Kaur might have affixed left thumb impressions being illiterate. Moreover, when Will was scribed by deed writer, he knew that right thumb impressions of the testatrix had to be obtained on the Will. Thus, the Will is not proved to have been executed by Ram Kaur. The testatrix also died a few days after the execution of the Will. Moreover, plaintiffs, after the death of their mother Jagir Kaur, had been residing with Ram Kaur – testatrix. Consequently, there was no reason to disinherit the plaintiffs, particularly when their mother was also no more. Learned lower appellate R. S. A. No. 2320 of 2009 (O&M) 4 court has also noticed various other suspicious circumstances surrounding the Will in question. Consequently, there is no illegality or infirmity n the finding of the lower appellate court that the Will in question is not proved. Lower appellate court is the final court of fact. In the instant case, finding recorded by the lower appellate court is based on proper reading and appreciation of the evidence, whereas the trial court completely misdirected itself and misread and misappreciated the evidence. The finding of the lower appellate court is fully justified and is supported by sound reasons. The same does not warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. For the reasons aforesaid, I find that the appeal lacks any merit and is accordingly dismissed in limine. July 22, 2010 ( L. N. MITTAL ) monika JUDGE