RSA No.1156 of 2011 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 15.03.2011 RSA No. 1156 of 2011 (O&M) Gurmail Singh .....Appellant Versus Manjit Kaur and others .......Respondents RSA No. 1162 of 2011 (O&M) Gurmail Singh .....Appellant Versus Manjit Kaur and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Jasbir Rattan,Advocate for the appellant. **** RSA No.1156 of 2011 2 SABINA, J. Vide this judgment, the above mentioned two appeals would be disposed of by one common order as they have arisen out of one suit. Plaintiffs had filed a suit for declaration and permanent injunction. The case of the plaintiffs, in brief, was that the Pritam Singh was joint owner in possession of the land measuring 98 Bighas15 Biswas to the extent of 9/40 share. The pedigree table, as shown in the plaint, is as under:- Pritam Singh _ !__ Bhan Kaur widow of defendant No.3 ! ________________________________________________ ! ! ! ! ! Gur - Ajmer Singh Bant Singh Gurmail Amar Kaur bachan Plaintiff Def.No.1 Singh (deceased) Singh No.2 Def.No.2 ! Plaintiff ! No.1 ! ____________________________ ! ! ! Sukhminder Mohinder Bhinder Singh Kaur Kaur Def.No.4 Def.No.5 Def.No.6 Pritam Singh died on 17.10.1994. Plaintiffs and defendants No. 1 to 3 became owners in joint possession in equal shares to the extent of 15/80 and defendants No. 4 to 6 became joint owners in possession in equal shares to the extent of 3/80. Defendants No. 1 and 2 had set up a false and fictitious Will dated 15.11.1992 and had got the same registered in the Office of Tehsildar Malerkotla after the death of Pritam Singh. Mutation was got sanctioned by defendants No.1 and 2 in their favour on the basis of the Will. RSA No.1156 of 2011 3 Defendants No. 1 and 2, in their written statement, alleged that Pritam Singh had executed a Will in their favour and on the basis of the same, mutation had been sanctioned in their favour. Defendants No.3 to 6, in their written statement, admitted the claim of the plaintiffs. The said defendants also filed a counter claim praying that they had become owners in joint possession to the extent of 3/80 share. On the pleadings of the parties, following issues were framed by the trial Court:- “1.Whether the plaintiffs are entitled for declaration as prayed for?OPP 2.Whether Will dated 15.11.1992 executed by Pritam Singh in favour of defendant No. 1 and 2 is forged and fictitious document ?OPP 3.Whether the plaintiffs are entitled for permanent injunction as prayed for?OPP 4.Whether the suit is not maintainable?OPD 4-A.Whether defendant No. 3 as joint owners in possession to the extent of 3/80 share and defendants No. 4 to 6 are joint owner in possession in equal share to the extent of 3/80 share in the suit land?OPD (3 to 6) 4-B.Whether defendants No. 3 to 6 are entitled to get the mutation sanctioned pertaining to the suit land?OPD (3 to 6) 4-C. Whether Will dated 15.11.1992 and the mutation No. 530 are illegal, wrong against law?OPD (3 to 6) 5.Relief” The Civil Judge( Junior Division) vide judgment and decree dated RSA No.1156 of 2011 4 4.2.2004 decreed the suit of the plaintiffs as well as the counter claim filed by defendants No. 3 to 6. Plaintiffs were held to be in joint possession in equal shares to the extent of 3/40 shares in the suit land after deducting the area sold by them to the extent of 294/425 share out of the suit land measuring 20 bighas 16 biswas and defendants No. 1 to 3 were held to be owners in joint possession to the extent of 15/80 share. Defendants No. 4 to 6 were held to be joint owners in possession to the extent of 3/80 share. Aggrieved by the said judgment and decree, defendant No.2 preferred an appeal and the same was dismissed by the Additional District Judge vide judgment and decree dated 27.4.2010. Hence, the present appeal by the Defendant No. 2. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. Defendants No. 1 and 2 had placed reliance on the Will Exhibit D1. First of all, let us examine whether the Will Exhibit D1 is a genuine document. The Will is a sacred document and speaks of mind of the executant after his death. In order to prove the due execution of the Will, the propounder of the Will is required to examine atleast one of the attesting witnesses to the Will in terms of section 68 of the Indian Evidence Act,1872. The propounder of the Will is further required to establish that the Will is not surrounded by any suspicious circumstances. In the present case, the Will, Exhibit D1, was, allegedly, executed on 15.11.1992.The executant of the Will died on 17.10.1994. Thereafter, the Will was got registered in November, RSA No.1156 of 2011 5 1995. Thus, in the present case, the Will was not got registered during the life time of the executant. Defendants no. 1 and 2, in order to prove the execution of the Will, examined the Scribe- Naib Singh, DW3 and attesting witness-Ishar Singh as DW4 and Kamikkar Singh as DW1. Although the execution of the Will was technically proved but a perusal of the Will itself Exhibit D1 ( shown during the course of arguments) reveals that the same is not a genuine document. There is an over-writing qua the year of the execution of the Will under the signatures of the Scribe. The year 1995 appears to have been made as 1992. In these circumstances, it appears that the Will was prepared on 15.11.1995 and was got registered on 21.11.1995. DW6 Dr.Atul Kumr Singla, handwriting and fingerprint expert compared the questioned thumb impressions of executant Pritam Singh on Will Exhibit D1 dated 15.11.1992 with his standard thumb impressions on registered sale deed, Exhibit PA, dated 8.6.1988 and gave the opinion that the same were not identical. Learned counsel for the appellant has submitted that the sale deed Exhibit PA could not be treated to be depicting the standard thumb impressions of Pritam Singh. The said argument raised by the learned counsel for the appellant is without any force. The sale deed Exhibit PA has not been challenged by defendants No. 1 and 2 and it was led in evidence by the plaintiffs. Hence, the thumb impressions of Pritam Singh, executant on Exhibit PA were liable to be taken as his standard thumb impressions. Thus, the Will, Exhibit D1, was liable to be discarded as it was not genuine document. The argument raised by the learned counsel for the appellant that no counter claim could be filed against the defendants is also RSA No.1156 of 2011 6 without any force. In fact, defendants No. 3 to 6 by way of counter claim had only claimed their share out of the suit property. Since the defendants had not been successful in proving the Will Exhibit D1, the suit of the plaintiffs as well as the counter claim filed by defendants No. 3 to 6 were liable to be decreed. No substantial question of law arises in this case warranting interference by this Court. Dismissed. ( Sabina ) Judge March 15, 2011 arya