R.S.A.No. 1512 of 1997 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1512 of 1997 (O&M) Date of decision: 14.10.2009 Kushal Singh and others ......Appellants Versus Bimla Devi .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Harbhagwan Singh, Sr.Advocate with Mr.Amit K.Singh, Advocate, for the appellants. Mr.Arun Jain, Sr.Advocate with Mr.Amit Jain, Advocate, for the respondent. **** SABINA, J. Plaintiff Bimla Devi filed a suit for declaration with consequential relief of permanent injunction, which was decreed by the Additional Senior Sub Judge, Hoshiarpur vide judgment and decree dated 10.4.1992. In appeal, the said judgment and decree were upheld by the Additional District Judge, Hoshiarpur vide R.S.A.No. 1512 of 1997 (O&M) 2 judgment and decree dated 4.3.1997. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- ““2. Smt. Bimla Devi plaintiff filed suit for declaration and in the alternative for possession against Kushal Singh etc. defendants on the allegations that Baghel Singh was the owner in possession of the property in dispute, fully described in the head note of the plaint bearing different khasra numbers situated in the revenue estate of village Bachhohi. That Bhagel Singh expired on 21.11.1986 after prolong illness. Plaintiff being widow is the only legal heir of deceased Baghel Singh. Baghel Singh had no son or daughter and after the death of Baghel Singh, plaintiff is owner in possession of the property in dispute. Defendants 1 and 2 got the mutation sanctioned in their names at the back of the plaintiff as heirs of Baghel Singh with a ridder that the plaintiff shall enjoy the produce of the suit land till her life time. Mutation in favour of defendants 1 and 2 is without any basis and does not confer any title. 3. Upon notice, defendants appeared, filed joined written statement and contested the suit inter alia on the ground that suit is not maintainable in the present form. R.S.A.No. 1512 of 1997 (O&M) 3 On merits, this fact was admitted that Baghel Singh was the owner in possession of the property in dispute and Bimla Devi is the widow of Baghel Singh who died on 21.11.1986. That plaintiff is neither owner nor in possession of the property in dispute because defendants were serving and looking after Baghel Singh who, in lieu of services rendered by the defendants had executed a registered Will dated 18.11.1986 in favour of defendants 1 and 2. By executing Will dated 18.11.1986, Baghel Singh had revoked the earlier Will dated 8.11.1986. Will dated 18.11.1986 was registered one and on the basis of that Will, mutation was rightly sanctioned. According to the Will, plaintiff was given only right to get from the defendants, produce of ½ of the land till her life time and after her death, defendants 1 and 2 will be entitled to keep the produce of the land. Land is still joint in which defendant No.3 is the owner to the extent of ½ share. Plaintiff is not owner in possession of the property in dispute. Defendants 1 and 2 were serving Baghel Singh who was living with them and had vote in the same house. Defendants 1 and 2 got admitted Baghel Singh in CMC Hospital, Ludhiana in the year 1976 and remained admitted for about two months. Again Baghel Singh remained in CMC Hospital, in the year 1986 and was R.S.A.No. 1512 of 1997 (O&M) 4 being served and looked after by the defendants. Baghel Singh was suffering from cancer and was taken to CMC Hospital, Ludhiana by Kuldip Singh defendant in November twice and ultimately was brought to Hoshiarpur on 16.11.1986. Again, he was admitted in CMC Hospital, Ludhiana for few days and was discharged from the hospital on 20.11.1986 and died on 21.11.1986.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the suit is not maintainable in the present form? OPD 2. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP 3. Whether the plaintiff is owner in possession of the suit land? OPP 4. Whether Baghel Singh executed a Will dated 18.11.1986 in favour of defendants No.1 and 2? If so its effect? OPD 5. Whether the plaintiff is entitled to get the produce of the land from defendants No.1 and 2 and till her life time? OPP 6. Relief. ” Learned senior counsel for the appellants has submitted that the Will in question was a duly registered document. R.S.A.No. 1512 of 1997 (O&M) 5 The appellants had been successful in proving due execution of the Will by examining the attesting witness and the scribe. Sub Registrar Moahn Lal, who had registered the Will, had also been examined to prove the due registration of the Will. The appellants were not strangers but were nephews of the executant of the Will. The handwriting expert has also given his opinion that the Will in question was signed by Baghel Singh-deceased. Learned senior counsel for the respondent, on the other hand, has submitted that although the Will was a registered document yet it was surrounded by suspicious circumstances. The executant was suffering from tuberculosis and cancer. He was admitted in the hospital at Hoshiarpur from where he was to be shifted to Christian Medical College, Ludhiana on 18.11.1986. It was not believable that during the said transition, the Will had been executed by the deceased. Baghel Singh died on 21.11.1986, after three days of execution of the Will. After hearing learned senior counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. A Will is a document that speaks of the mind of the deceased after his death. The executant of the Will is though never available for deposing as to under what circumstances, he has executed the Will. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is R.S.A.No. 1512 of 1997 (O&M) 6 proved to be the last Will of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will. A Will is required to be proved like any other document. Since the Will is required to be attested and as per Section 68 of the Indian Evidence Act, 1872, at least one attesting witness is required to be examined to prove due execution of the Will. The attesting witness is required to establish that the Will in question was executed by the testator in the presence of attesting witnesses and they had attested the same in the presence of the testator. In a case where the Will is a registered document then the endorsement made by the Sub Registrar that the Will had been thumb marked or signed by the executant in his presence after it was read over to the executant has a presumption of truth. It is also a settled proposition of law that in connection with Wills execution of which is alleged to be surrounded by suspicious circumstances, the test of satisfaction of judicial conscience has been evolved. That test emphasis that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances, the Court has to be fully satisfied that the Will has been validly executed by the testator. Although in the present case, the defendants had technically proved the execution of the Will by examining one R.S.A.No. 1512 of 1997 (O&M) 7 attesting witness of the Will. The defendants also examined DW-3 Mohan Lal Sub Registrar to establish due registration of the Will. Although registration of the Will goes a long way in proving the due execution of the Will yet propounder of the Will is required to dispel with all the suspicious circumstances surrounding the Will. Undisputedly, Baghel Singh executant was suffering from tuberculosis and lung cancer. Baghel Singh was under medical treatment. On 18.11.1986, Baghel Singh was on artificial oxygen. Baghel Singh was admitted in CMC Hospital, Ludhiana on 6.11.1986 from where he was discharged on 14.11.1986. Thereafter, his condition again became critical and he was admitted in Civil Hospital, Hoshiarpur on 16.11.1986. Thereafter, on 18.11.1986, Baghel Singh was shifted to CMC Ludhiana and was put on oxygen in emergency ward. Ultimately, Baghel Singh died on 21.11.1986. From this, it is evident that all was not well with the executant. DW-3, in his cross-examination, deposed that Baghel Singh had walked into his office. He stayed in his office for 30 to 45 minutes. He did not know Baghel Singh personally. However, the medical record of Baghel Singh is otherwise. PW-2 Dr.Ajay Bagga from Civil Hospital, Hoshiarpur deposed that Baghel Singh was examined by the emergency Medical Officer on 16.11.1986 and he had examined him on 17.11.1986. The patient was put on oxygen and other drugs. The patient was taken at 8.00 a.m. on 18.11.1986 with his consent. R.S.A.No. 1512 of 1997 (O&M) 8 Thus, it is not believable that a person, who was suffering from serious diseases and had been put on oxygen could execute the Will, while on way from Civil Hospital, Hoshiarpur to CMC Ludhiana especially when the Sub Registrar did not find that the executant was suffering from any disease till he remained present in his office for about 45 minutes. The defendants also took up the plea that the Will executed by Baghel Singh on 8.11.1986 was cancelled vide Will dated 18.1.1986 but the said Will dated 8.11.1986 was not produced before the trial Court. Both the Courts below, after appreciating the evidence led by the parties have rightly held that the Will in question was not a genuine document. In these circumstances, the Courts below had rightly decreed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 14, 2009 anita