R.S.A.No. 2067 of 2007 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2067 of 2007 (O&M) Date of decision: 11.3.2011 Hukam Chand ......Appellant Versus Kamla and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Arun Jain, Sr. Advocate with Mr.Sunil Sharma, Advocate, for the appellant. Mr.Sandeep K.Sharma, Advocate, for respondents No.2 to 8. **** SABINA, J. Plaintiffs had filed a suit for declaration and joint possession regarding the suit land. The pedigree table, as shown in para 1 of the plaint, is as under:- Har Lal ------------------------------------------------------------------------------------------------------------- | | | | Mishri Sarjo Vidhaya Kamla (widow (daughter) (def. No.2) (def.) | | Plaintiff Hukam | Chand | -------------------------------------- | | Surinder Singh Om Parkash R.S.A.No. 2067 of 2007 (O&M) 2 Mishri was owner in possession of 1/3rd share of the suit land. Mishri died on 27.5.1981 leaving behind the plaintiff and defendant Nos. 1 and 2 as her legal heirs. Plaintiff is the son of the daughter of Mishri. Plaintiff was serving with Para Military Forces and was not residing in the village. Defendants No.1 and 2 took the land of the plaintiff for cultivation on annual rent of ` 5,000/-. The said rent was being paid to the plaintiff up to the year 1999. In the year 1999, plaintiff requested for enhancement of rent but defendant Nos. 1 and 2 refused to pay anything to the plaintiff. Defendants No.1, 3 and 4 got mutation No.1058 dated 22.12.1981 in their favour on the basis of Will dated 12.9.1980. The said Will was not a genuine document and the mutation sanctioned on its basis was illegal, null and void. Defendants No.2 to 5, in their written statement, averred that defendants No.1, 3 and 4 had become owners of the suit land by way of registered Will, which was executed by Mishri in their favour. Plaintiff had no right, title or concern with the suit land. Ghasi Ram, father of defendants No.3 and 4 was in possession of the suit land as pattedar (lease holder). Defendant No.1 was proceeded ex parte as she failed to appear despite service. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the Will dated 12.9.1980 along with mutation No.1058 dated 22.12.1981 are illegal, null and void and not binding on the rights of the plaintiff? OPP. 2. Whether the Pattanama dated 7.6.1980 is also illegal, R.S.A.No. 2067 of 2007 (O&M) 3 null and void and not binding on the plaintiff? OPP 3. Whether the plaintiff has no locus standi to file the present suit ? OPD 4. Whether the suit is not maintainable in the present form. 5. Whether the plaintiff is estopped by his own act and conduct to file the suit ? OPD 6. Relief.” The trial Court dismissed the suit of the plaintiff vide judgment and decree dated 18.10.2004. The said judgment and decree were upheld in appeal filed by the plaintiff by the Additional District Judge vide judgment and decree dated 29.3.2007. Hence, the present appeal by the plaintiff. Learned senior counsel for the plaintiff has submitted that the Will set up by the defendants was not a genuine document. Om Parkash-defendant No.4, who was a beneficiary under the Will, had taken active part in execution of the Will. The suit filed by the plaintiff was not barred by limitation as it had been filed on the basis of inheritance. Learned counsel for the respondents, on the other hand, has submitted that the Will in question was a registered document. Mishri had executed a Will in favour of her sister Kamla and defendants No. 3 and 4, sons of her sister Vidhaya. In an earlier Will executed by Mishri, defendant No.4 was given half share by the executant, whereas, as per the Will in question, defendant No.4 had been given 1/3rd share. In these circumstances, it could not be said that the Will was bad as it had been signed by defendant No.4. R.S.A.No. 2067 of 2007 (O&M) 4 After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. First of all, the question that requires consideration is as to whether the Will set up by the defendants dated 12.9.1980 is a genuine document or not. The Will speaks of the mind of the executant after his death. Although registration of Will is not compulsory but it goes a long way in proving its genuineness. In order to prove the due execution of the Will in terms of Section 68 of the Indian Evidence Act, 1873, the propounder of the Will is required to examine atleast one of the attesting witnesses to the Will. It is further required to be established that the executant had executed the Will in the presence of the attesting witnesses and the attesting witnesses had attested the same in the presence of the executant. The propounder of the Will is also required to dispel any suspicious circumstance surrounding the Will. The Will in question Ex.D-1 is dated 12.9.1980 and bears the signatures of defendant No.4 Om Parkash. The Will had been attested by Sarup Singh and Udai Singh. Executant Mishri executed the Will in favour of Om Parkash, Surinder Singh and Kamla. The executant was 68 years old at the time of execution of the Will. As per endorsement made by the Sub Registrar, the contents of the Will were read over to the executant at the time of registration of the Will and thereafter, the executant had thumb marked the same after admitting the contents to be correct. A presumption of truth is attached to the said endorsement. There is nothing on record to suggest that the said endorsement was not correctly made. R.S.A.No. 2067 of 2007 (O&M) 5 Moreover, there is nothing on record to suggest that the Will did not bear the thumb impression of Mishri or that Mishri had not appeared before the Sub Registrar at the time of registration of Will. Although Om Parkash had signed the Will in question but this in itself is not sufficient to hold that the Will was a suspicious document because one of the beneficiaries was present at the time of execution of the Will. Vide Will Ex.D-1, the executant had cancelled her earlier registered Will dated 29.5.1980. A copy of the said Will is available on record as Ex.P-8. A perusal of the same reveals that the said will was executed in the name of Om Parkash and Surinder Singh. Thus, Om Parkash was to get half share qua the property of the executant vide earlier Will Ex.P-8, whereas, vide Ex.D-1, the share of Om Parkash had decreased to 1/3rd qua the property of the executant. It has also come on record that the father of Om Parkash was also present at the time of execution of the Will. However, these facts in itself are not sufficient to hold that the Will was not a genuine document. Both the attesting witnesses to the Will have since died. Scribe Man Mohan was examined by the defendant as DW-5. The said witness had deposed qua execution of the Will by the executant in favour of defendants No.1, 3 and 4. Scribe has further deposed that the executant was in sound disposing mind at the time of execution of the Will. There is nothing on record to the contrary. Om Parkash while appearing in the witness box has also deposed qua due execution of the Will. In these circumstances, learned first Appellate Court, after appreciating the evidence on record, rightly held that the Will in question had been duly executed by the executant in favour defendants No.1, 3 and 4. Since the Will executed by the executant in favour of the defendants was duly proved on record, the suit of the plaintiff was liable to fail. R.S.A.No. 2067 of 2007 (O&M) 6 No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE March 11, 2011 anita