IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 4818 of 2009 (O&M) Date of Decision : 18.1.2010 Jaspal Singh and another ....Appellants Versus Gurcharan Kaur ...Respondent CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. P.C.Suman, Advocate for the appellants. ..... MAHESH GROVER, J. C.M.No.14323-CI of 2009 C.M. is allowed as prayed for. R.S.A.No.4818 of 2009 This appeal by the defendants is directed against the judgments of the learned trial court dated 18.10.2008 and that of the first Appellate Court dated 25.8.2009. The plaintiff-respondent is daughter, appellant no.1 is son and appellant No.2 is widow of one Hazura Singh whose estate is in question. The plaintiff-respondent claimed 1/3rd share out of the suit property belonging to Hazura Singh on the basis of inheritance whereas the appellants claimed the property on the basis of Will dated 24.5.1984. The plaintiff-respondent further pleaded a registered R.S.A. No. 4818 of 2009 (O&M) -2- cancellation deed rescinding the Will in favour of the appellants. The appellants then set up another document to say that this cancellation deed had also been cancelled by Hazura Singh during his life time. With the aforesaid pleadings and their respective stands the parties went to trial on the following issues :- 1) Whether the plaintiff is entitled to the decree of possession of 1/3 share out of land as mentioned in para X in the heading of the plaint? OPP 2) Whether the plaintiff is entitled to the decree of joint possession of 1/3 share out of the house as mentioned in para 'Y' and Gair Mumkin Abadi as mentioned in para Z in the heading of the plaint?OPP 3) Whether the plaintiff is entitled to the decree for permanent injunction as prayed for? OPP 4) Whether the suit is not maintainable in the present form? OPD 5) Whether the plaintiff has concealed the true and material facts from this court?OPD 6) Relief. The learned trial court as also the first Appellate Court held that the Will had been rescinded by the cancellation deed the execution of which had been duly proved by the plaintiff-respondent and did not accept the subsequent document set up to plead revocation of the cancellation deed set up by the appellants. The claim of the plaintiff-respondent to 1/3rd share of the suit property was answered in the affirmative. In appeal, the findings of the learned trial R.S.A. No. 4818 of 2009 (O&M) -3- Court were affirmed. Learned counsel for the appellants while assailing the aforesaid findings in the instant appeal has contended that the cancellation deed of the Will on which reliance has been placed by the plaintiff-respondent has not been proved in accordance with law. He made a two-fold submission to contend that there was nothing on the record to show that the cancellation deed contained the signatures of deceased Hazura Singh. He further contended that the Sub- Registrar who had appeared as a witness to support the cancellation died of the Will had stated that he did not know the executor of the document i.e. Hazura Singh and was also not known to the attesting witnesses Kala Singh and Ajmer Singh, personally. He thus contended that even otherwise if the testimony of this witness is to be seen, it reveals that he was not knowing Hazura Singh and did not recall his appearance and if the entire testimony is to be seen including these two facts which have been brought out, then it cannot be said that the testimony of this witness can be relied upon. He further contended that these factors assume more significance because the attesting witnesses have since expired. He thus contended that the reliance on the cancellation deed which has been made by the courts below to discard the plea of the appellants is erroneous and consequently the judgments rendered by the courts below deserve to be set aside. I have heard the learned counsel for the appellants and have perused the material on record. The plaintiff-respondent who pleaded succession on the R.S.A. No. 4818 of 2009 (O&M) -4- basis of inheritance to the extent of 1/3rd share of Hazura Singh has specifically pleaded cancellation deed of Will by which the property was initially bequeathed in favour of the appellants. Both these documents are registered documents. Learned counsel for the appellants has not denied that the Will which is in their favour, carried the signature of Hazura Singh. Therefore, his contention apparently is misplaced when he contends that whether the cancellation deed carried the signature of Hazura Singh or not was not established for the simple reason that the plaintiff-respondent got the signatures of Hazura Singh on the cancellation deed compared with the Will through the agency of hand-writing expert who has also been examined and who stated that the specimen signatures of Hazura Singh on the Will Ex.DW2/G were the same which were on the cancellation deed Ex.P2. This factor singularly overwhelms all the contentions which have been raised by the learned counsel for the appellants. Besides, the Sub-Registrar appeared to testify the execution of the cancellation deed Ex.P2. The contention of the learned counsel for the appellants that the Sub-Registrar was not personally known to Hazura Singh and the attesting witnesses, was the factor which was found without any merit for the simple reason that it had come in evidence that the Sub-Registrar had remained posted at that place for 9 months. The document in question was executed in the year 1989 whereas the testimony of the Sub-Registrar was recorded in the year 2002. It is not expected of an officer to remember the faces or to recall the name of the person who appeared before him to get the document registered and more so after a lapse of R.S.A. No. 4818 of 2009 (O&M) -5- more than a decade. His testimony cannot therefore be thrown out on this ground. The subsequent document Ex.DW1/B on which reliance was placed by the learned counsel for the appellants was also discarded by the courts below on the ground that it was not found creditworthy. It was merely a small piece of writing allegedly disowning the cancellation deed by Hazur Singh. His signatures also appeared in Punjabi on this document. An attempt was made by the appellants to get these signatures compared with the agreement dated 16.6.1993 and a consequent sale deed dated 6.1.1994. But ironically these are the documents regarding which the appellants could not establish and co-relate the signatures of Hazura Singh thereon with the subsequent document reasserting the Will Ex.DW2/G. This Court is, therefore, of the considered opinion that the plaintiff-respondent had sufficiently proved the execution of the cancellation deed revoking the earlier Will and the appellants failed to establish the execution of the subsequent document Ex.DW1/B vide which the earlier Will was allegedly said to have been reasserted. In such an eventuality both the courts were justified in decreeing the suit of the plaintiff-respondent to the extent of 1/3rd share of Hazura Singh as there was no impediment on such succession to the estate of the deceased in the absence of any Will or any document in favour of the appellants excluding the plaintiff-respondent from natural succession. No ground to interfere. Dismissed. R.S.A. No. 4818 of 2009 (O&M) -6- In view of the decision of the appeal C.M.No.14324-C of 2009 is also dismissed. 18.1.2010 (MAHESH GROVER) JUDGE dss