R.S.A.No. 2224 of 2006 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2224 of 2006 Date of decision: 7.2.2011 Kulwinder Singh ......Appellant Versus Jaspal Kaur .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.R.S.Chauhan, Advocate, for the appellants. Mr.Sachin Jain, Advocate, for respondents No. 7 to 12 and 14 to 16. **** SABINA, J. Plaintiff Kulwinder Singh had filed a suit for declaration with consequential relief of permanent injunction or in the alternative for possession of the suit land. The case of the plaintiff, in brief, was that the suit property was owned by Banta Singh. Banta Singh died on 19.12.1986 leaving behind the plaintiff and defendants as his legal heirs. Banta Singh had executed a Will dated 4.11.1986 in favour of the plaintiff, Charanjit Singh defendant No.1 and Balwinder Singh deceased to the extent of 3/4th share and defendant No.5 Gurdeep Singh to the extent of 1/4th share. Balwinder Singh, brother of the R.S.A.No. 2224 of 2006 2 plaintiff, had died unmarried- issueless in the year 1995. Defendant No.4 had inherited the share of Balwinder Singh. Gurdeep Singh was married but issueless. Mohinder Singh-defendant No.7 had not been heard of last many years. Defendant No.6 Sucha Singh never took care of his father and Karnail Singh was of week mind. In these circumstances, Banta Singh had executed the Will in favour of plaintiff, Charanjit Singh defendant No.1, Balwinder Singh and defendant No.5 Gurdeep Singh. The pedigree table, as reproduced in para 2 of the judgment of the trial Court is as under:- Banta Singh son of Hira Singh (died on 19.12.1986) ______________________________________________________________________________ | | | | | | | Gurdeep Singh Sucha Singh Mohinder Singh Karnail Singh Jagir Kaur Mohinder Surinder Def. No.5 (son (son) D.No.7 (son) D.No.8 daughter Kaur Kaur | D.No.9 daughter daughter | died about died in the | 15/16 yrs back year 1990 | | | | | | | | | ____________________________________________________ | | | | | | | | | | Kulwinder Charanjit Balwinder Jaspal Balwinder Joginer | | Singh son Singh Singh Kaur Kaur Kaur | | plaintiff son D.No.1 son died daughter daughter wife | | in 1995 D.No.2 D.No.3 | | | | ________________________________________________________________ | | | | | | | | Jeet Singh Nirmal Singh Joga Singh Kashmir Singh Makhan Singh | husband son D.No.11 son D.No.12 D.No.13 son D.No.14 | D.No.10 | _____________________________________________________ | | | | | Mohinder Singh Harjit Singh Amarjit Singh Sharanjit Singh husband D.No.15 son D.No.16 son D.No.17 son D.No.19 Mutation No. 2218 sanctioned in favour of defendants was illegal, null and void. Plaintiffs and defendants No.1 to 4 had R.S.A.No. 2224 of 2006 3 never appeared during the said proceedings. Defendants No. 1 to 5 admitted the claim of the plaintiff in their written statement. Defendants No. 6, 8, 9 to 12, 14 to 18, in their written statement, admitted that the land in dispute was perviously owned and possessed by Banta Singh. It was submitted that Banta Singh had died on 19.12.1986. The factum of execution of Will by Banta Singh in favour of the plaintiff, Charanjit Singh defendant No.1, Balwinder Singh and defendant No.5 Gurdeep Singh was denied. It was averred that the said Will was a forged and fabricated document. After the death of Banta Singh, the land in dispute had been mutated in favour of the legal heirs of Banta Singh. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether plaintiff is entitled for declaration as prayed for? OPP. 2. Whether Will dated 4.11.1986 executed by Banta Singh is a valid Will? OPP 3. Whether the plaintiff is entitled for permanent injunction as prayed for ? OPP 4.Whether the suit is not maintainable in the present form ? OPD 5. Whether the plaintiff has no locus standi to file the present suit ? OPD 6. Whether plaintiff is barred by his act and conduct from R.S.A.No. 2224 of 2006 4 filing the present suit ? OPD 7. Whether suit is bad for misjoinder and non joinder of necessary parties ? OPD 8. Relief.” The trial Court dismissed the suit of the plaintiff vide judgment and decree dated 12.4.2004. Aggrieved by the same, plaintiff, defendant Nos.1 and 4 preferred an appeal and the same was also dismissed vide judgment and decree dated 16.3.2006 passed by Additional District Judge, Jalandhar. Hence, the present appeal by the plaintiff and defendants No.1 and 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. The point for consideration in the present case is as to whether deceased Banta Singh had executed a Will dated 4.11.1986 in favour of plaintiff, Charanjit Singh defendant No.1, Balwinder Singh-deceased and defendant No.5 Gurdeep Singh Will is a sacred document that speaks of the mind of the deceased after his death. The propounder of the Will is required to examine atlease one of the attesting witnesses of the Will set up by him. The attesting witness is required to establish that the Will in question was executed by the executant in his presence and he had attested the same in the presence of the executant. Further the propounder of the Will is also required to dispel the suspicious R.S.A.No. 2224 of 2006 5 circumstances, if any, surrounding the Will. Although Will is not required to be compulsorily registered but registration of Will goes a long way in proving its genuineness. In the present case, the fact that the property in question was owned by Banta Singh is not in dispute. In order to establish the due execution of the Will, plaintiff examined deed writer Jagdish Singh Uppal as PW-3 and examined Amar chand as PW-2, who is the attesting witness of the Will in question. Although the scribe deposed that he had written the Will as per the instructions of the executant and had thereafter, made an entry in this regard in his register but the deed writer failed to prove on record the entry made by him in the register qua scribing of the Will. The executant had executed the Will in favour of some of his legal heirs by excluding his other sons and daughters. The executant was required to give some cogent reasons for dis- inheriting his other legal heirs. However, admittedly, no reason had been given qua dis-inheritance of the other legal heirs in the Will in question. The Will in question was allegedly signed by the executant. An objection was taken by the contesting defendants that executant Banta Singh was an illiterate man and he used to affix his thumb impression only while executing documents and was unable to sign. In order to establish their plea, defendants produced on record mortgage deed dated 22.4.1981 Mark 'A', sale deed dated R.S.A.No. 2224 of 2006 6 13.3.1978, which were attested by Banta Singh by affixing his thumb impression. DW-1 Satya Dev was examined to prove the said document, who deposed that he had scribed Mark 'A' at the instance of Banta Singh. Banta Singh affixed his thumb impressions on the said document being lambardar. The plaintiff, on the other hand, failed to prove on record any document establishing the fact that Banta Singh used to append his signatures while executing documents. Mutation qua inheritance of Banta Singh was sanctioned on 28.12.1996 on the basis of natural succession. However, the plaintiff had not set up his claim on the basis of the Will till the filing of the suit. It has been noticed by the trial Court in its judgment that the plaintiff was about 8-9 years old at the time of execution of the alleged Will and in these circumstances, it was not believable that the Will, after its execution, might have been handed over to the plaintiff, who was just a child at that time. The Will in question is an un- registered document. In the facts and circumstances of the present case, the Courts below rightly held that the Will in question was surrounded by suspicious circumstances. 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 February 07, 2011 anita R.S.A.No. 2224 of 2006 7