CM No.2436 CII of 2008 C.R. No.537 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CM No.2436 CII of 2008 C.R. No.537 of 2008 Date of Decision: 4.2.2008 Raj Kumar and others .....Petitioners Vs. Damyanti and others ...Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr.S.R. Hooda, Advocate for the petitioners. ... RAJIVE BHALLA, J CM No.2436 CII of 2008 C.M. is allowed. Copy of order dated 23.1.2008 (Annexure P-1) passed by the Additional District Judge, Sonepat, is taken on record. CR No.537 of 2008 This order shall dispose of Civil Revision Nos.537 and 538 of 2008. The petitioners, impugn an order dated 7.1.2008 passed by the Additional District Judge, Sonepat, holding all five legal representatives of Kundan entitled to receive compensation, assessed under the Land Acquisition Act (hereinafter referred to as `the Act’) in equal shares. Agricultural land belonging to one Kundan was acquired by the State of Haryana. Dissatisfied with the compensation, assessed by the Collector, Kundan, filed a Reference under Section 18 of the Act. bearing LAC Case No.287/97/96. The Reference Court, accepted the reference and CM No.2436 CII of 2008 C.R. No.537 of 2008 2 vide order dated 2.6.1999, directed enhancement of compensation. Kundan, thereafter, filed an execution petition but passed away on 27.3.2002, leaving behind five legal representatives, four sons Puran Singh, Dalel Singh, Daljit Singh and Dharampal and a daughter Ms.Santosh. On 24.5.2002, Kundan’s sons, filed an application for being impleaded as his legal representatives, on the basis of a Will dated 8.3.2002. The application was allowed vide order dated 25.5.2002 On 3.6.2002, Smt.Santosh, admittedly, the only daughter of Kundan, filed an application for being impleaded as a legal representative of Kundan alleging that her brothers had deprived her of her legal right by producing a forged and fabricated Will. Dalel Singh, Daljeet Singh and Dharampal, opposed the application, whereas, Puran Singh supported the application filed by Smt.Santosh. On the basis of the evidence adduced by the parties, the learned Executing Court held that the petitioners had failed to establish due execution of the Will or to dispel the suspicious circumstances surrounding the execution of the Will. It was, therefore, held that as Smt.Santosh was also a legal representative of Kundan, all five children of Kundan were entitled to receive their share in the compensation equally. Counsel for the petitioners submits that the impugned order is illegal and void. The thumb impression of Kundan, appearing on the Will, has been duly proved by RW-2, a handwriting and finger print expert. Although the attesting witnesses have denied having attested the Will, its execution is duly established by the deposition of RW-1 Bhim Sain Arya, the Document Writer. He has specifically deposed that Kundan affixed his signatures after admitting the correctness of the contents of the Will and that CM No.2436 CII of 2008 C.R. No.537 of 2008 3 the attesting witnesses signed in the presence of Kundan. The deed writer has produced his register and proved the entry evidencing execution of the Will Ex.D-2. It is further submitted that as no objection was raised, when the Will was admitted into evidence, the respondents were barred from raising any objection in respect thereof. It is further contended that as a plea of fraud was raised by respondent no.4, onus to establish the plea lay upon her. The respondents, however, have failed to produce any evidence, in support of their assertion that the Will was obtained by fraud. It is further submitted that during his life time, Kundan purchased a residential house for his daughter Smt.Santosh in Sikka Colony, Sonepat and, therefore, rightly did not make any arrangement for her in the Will. I have heard learned counsel for the petitioners and perused the impugned order. The petitioners contention that as the respondent alleged fraud, she was required to establish her plea is basically flawed. Where a party, whether a plaintiff or defendant propounds a Will, onus to establish, in the affirmative its due execution and to dispel all suspicious circumstances falls on the propounder of the Will. The onus to establish otherwise would only shift to the other party, once the propounder of the Will discharges his initial onus. In the instant case, as the petitioners failed to discharge the initial onus as propounders of the Will, the onus to establish otherwise did not fall to the respondents. The Will Ex.D-1, was propounded by the petitioners. The onus, therefore, to establish its due execution, as also to dispel all suspicious circumstances, attendant thereto fell upon the petitioners. The two attesting witnesses, Kishan Chand Lamberdar AW-3 and Satbir AW-2 have denied CM No.2436 CII of 2008 C.R. No.537 of 2008 4 their role as attesting witnesses. Kishan Chand has deposed that his signatures were obtained on an application for release of an electricity/tubewell connection. The deposition by Satbir is that he signed on blank papers. As both attesting witnesses have not supported the execution of the Will, the fact that thumb impression of the deceased has been proved is immaterial. In so far as the statement of the document writer Bhim Sain Arya, suffice it to say that his deposition, is unreliable. While deposing as a witness before the revenue authorities, he specifically deposed that the Will was typed at the instance of boys, (i.e. the petitioners). He further deposed that thereafter he went to the house of the testator and obtained his thumb impression. His testimony, therefore, that the will was prepared under the instructions of Kundan, who thereafter thumb marked it in the presence of the attesting witnesses etc. is inherently unreliable. As the petitioners failed to establish the due execution of the Will, in terms of Section 68 of the Indian Evidence Act, the Court below rightly held that all five children of Kundan were entitled to receive the compensation amount in equal shares. As the impugned order does not suffer from any error of jurisdiction or of law, as would require interference the revision petition is dismissed in limine. 4.2.2008 ( RAJIVE BHALLA ) GS JUDGE