RSA No.761 of 1982 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.761 of 1982 (O&M) Date of Decision:14.11.2011 Mal Singh son of Suchet Singh resident of Village Aujla Banwali, Tehsil and District Kapurthala. ... Appellant Versus Partap Singh son of Suchet Singh, residents of village Aujla Banwali, Tehsil and District Kapurthala and others. ... Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:Mr. O.P. Goyal, Senior Advocate with Mr. H.S. Gharoo, Advocate, for the appellant. Mr. Sunil Chadha, Advocate, for the respondents. ***** 1.Whether reporters of local papers may be allowed to see the judgment? NO 2.To be referred to the reporters or not? NO 3.Whether the judgment should be reported in the digest? NO K. KANNAN, J. (Oral) 1 The appeal stands for consideration on the only relevant issue of whether the Will said to have been executed by the father of the plaintiff-appellant on 29.05.1954 was established in accordance with law. The contesting defendants were the brothers of the plaintiff-appellant in a suit for partition. The estate related to the property of Suchet Singh and the plaintiff claimed 1/4th share. His contention was that the property in the hands of his father was ancestral but both the Courts below rejected his contention. The defendants claimed RSA No.761 of 1982 (O&M) [2] that Suchet Singh executed a Will and duly registered the same and that after death of the father on 11.12.1963, the brothers of the plaintiff Dhanna Singh, Partap Singh and Darshan Singh were enjoying all the properties. The mutation was said to have been also made on the basis of the Will on 28.08.1968 in favour of the defendants. The suit came to be instituted on 19.07.1974. 2. On the genuineness and validity of the Will before the trial Court, the defendants gave the evidence of DW-1, who was the son of the Scribe and he produced a register containing the reference to his father as having executed a Will on that day. DW-5 was a Superintendent in the Treasury and who claimed that he was working under the Sub-Registrar and he identified the signature of the Sub-Registrar, who was said to have registered Will. The witnesses and the Scribe were said to have died. Nobody was remained to speak about the signatures of the witnesses. The trial Court found that neither the proof of the signature of the Sub-Registrar nor the fact that there had been an entry in the register maintained by the Scribe that he had written a Will for Suchet Singh constituted proof for the Will. He proceeded, therefore, to decree the suit. On appeal by the defendants, the trial Courts finding regarding the Will was set aside and the Court held that the father had definite reason to disinherit son. The plaintiff had not chosen to file the suit during all the time when the Scribe and the witnesses were alive and it had been deliberately filed beyond their lifetime nearly 11 years after the death of the father. The appellate Court held that the proof of Registrar's signature and the evidence of the witnesses were sufficient to uphold the Will. 3. When the issue is one of the proof of Will, there is no scope for deviating from the strict application of law relating to RSA No.761 of 1982 (O&M) [3] proof of a Will as set out through Section 63 of the Indian Succession Act and through Sections 68 and 69 of the Indian Evidence Act. The fact that the Will was registered cannot make any presumption that it is a genuine Will nor can the fact that the Will is not registered, be a fact to doubt genuineness. The only method that the Will could be proved is to call at least one attesting witness as required under Section 68. In this case, since both the attesting witnesses were said to have died, the proof is possible only in the manner contemplated under Section 69: “69. Proof where no attesting witness found. - If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.” 4. In this case, it should have been certainly possible for the defendants, who were propounding the Will to examine someone connected with and acquainted with the signatures of either Surjit Singh or Nihal Singh, who were said to be the witnesses. There was no evidence offered from anyone, who was acquainted with the signatures of either one of the witnesses. The document has not been proved in the manner required by law and the Lower Appellate Court was clearly in error in setting aside the finding of the trial Court that the Will had not been established. In this case, another aspect of relevance is that even the original Will had not been produced. The defendants had an excuse to give, which was rather strange. Viz., that the plaintiff himself had got the original Will RSA No.761 of 1982 (O&M) [4] lost and the mutation itself was made only with the help of the registered copy. No serious attempt was even made as to how the Will could have gone to the hands of the plaintiff for causing a loss of the instrument. This unusual conduct had also been commented by the trial Court. Before this Court, an application under Order 41 Rule 27 has been filed to place on record some documents for proof of the thumb impression of the deceased Suchet Singh. The documents are wholly irrelevant and the proof of thumb impression cannot by itself prove the Will. The Will, which is required to be attested, cannot be proved in any manner other than the manner set through Sections 68 and 69 of the Indian Evidence Act. That has not been done and the defendants cannot buttress their own failing defence by any attempt to prove thumb impression of the executant. The application for reception of additional evidence deserves to be dismissed and, accordingly, the same is dismissed. 5. The trial Courts finding is restored and the appellate Court that decided that the Will was genuine, is set aside. The second appeal is allowed with costs. NOVEMBER 14, 2011 ( K. KANNAN ) Rajan JUDGE