R. S. A No. 3265 of 2006 1 In the High Court of Punjab & Haryana at Chandigarh R. S. A No. 3265 of 2006 (O&M) Date of decision : 28.8.2008 Harjinder Singh and another ..... Appellants vs Gurcharan Kaur and others ..... Respondents Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Arun Palli, Senior Advocate with Mr. Jai Bhagwan, Advocate, for the appellants. Mr. Ashish Aggarwal, Advocate, for respondent nos. 1, 2 and 4. Rajesh Bindal J. The defendants are in appeal against the concurrent findings of fact recorded by both the courts below where the suit filed by the respondents for declaration with consequential relief of permanent injunction was decreed. The challenge in the suit was to the validity of Will dated 15.2.1995 and the mutation sanctioned on the basis thereof. It is the property of Ishar Singh which is involved in the present case who expired on 22.2.1995 merely seven days after the execution of alleged unregistered Will at the age of 80 years. Ishar Singh had left behind, his widow, three daughters, two sons and grand-sons of his pre-deceased third son. The suit was filed by widow, three daughters and one son against the another son and two grand-sons of Ishar Singh. As is evident from the pleadings, Ishar Singh owned 27 kanals 10 marlas of land. Vide impugned Will he bequeathed 4 kanals in favour of his widow, 11 kanals 15 marlas in favour of his one son Raghbir Singh and 11 kanals 15 marlas in favour of his two grand sons (sons of his pre-deceased son). Nothing was given to the third son and three daughters. The will was challenged primarily on the ground that the same was a forged and fabricated document. It is shown in the Will that the same had been signed by the attestator Ishar Singh who, in fact did not know how to read or write as he was illiterate. He never put his signatures on any of R. S. A No. 3265 of 2006 2 the document prior thereto. It was in this factual matrix that both the courts below decreed the suit. Learned counsel for the appellants submitted that the execution of Will by a person necessarily means that he is to oust someone from the share of the property and in case nothing had been given to one son or three daughters, the same could not be taken as a circumstance for holding the Will to be suspicious document executed under suspicious circumstances. He submitted that the daughters were not given any share for the reason that sufficient amount was spent on their marriage by deceased Ishar Singh. Regarding the statement of DW5 Nambardar Baldev Singh, learned counsel submitted that in 1957-58 Baldev Singh was the member of Panchayat and Ishar Singh was also the member of Panchayat at that time. He has deposed that Ishar Singh could read Punjabi. He has also affixed his signatures in Punjabi in panchayat record in his presence. He further submitted that Ishar Singh used to go in Gurudwara where he used to read Guru Granth Sahib. He further submitted that there was nothing unusual if two grand sons had been given 11 kanals 15 marlas of land merely because they had lost their father. On the other hand, learned counsel for the respondents submitted that the manner and the time at which the Will was executed itself show that the circumstances were quite suspicious. In the statement of PW8 Prem Chand, Record Keeper, Civil Hospital, Karnal, it had come on record that deceased Ishar Singh was admitted in Civil Hospital, Karnal at 1.30 P.M. on 14.2.1995. The Will is shown to have been executed on 15.2.1995. He further referred to statement of DW4 Darbara Singh who stated that on 15.2.1995, he along with Ishar Singh covered a distance of two kilometers from Village Gorgarh to Janesari on foot to reach Sub-Tehsil Indri by bus. The fact is totally unbelievable, considering the fact that Ishar Singh was hospitalized on 14.2.1995 at 1.30 p.m. on account of his high fever and was 80 years of age at that time. He further submitted that realising his mistake Raghbir Singh one of the defendants compromised the matter with the respondents/ plaintiffs admitting that the will was a forged document. Further the submission is that Ishar Singh did not have good relations with the family of his pre-deceased son Pargat Singh for the reason that Kuldeep Kaur widow of Pargat Singh is facing trial under Section 306 IPC for R. S. A No. 3265 of 2006 3 abetting suicide of her husband (son of Ishar Singh). Finally as regards the dispute regarding signatures or thumb impression on the Will, he referred to ample evidence on record showing that Ishar Singh never signed any document in his life time. Number of documents have been placed on record showing thumb impression of the deceased Ishar Singh. As against this no document was placed on record by the appellant/defendants to show that Ishar Singh ever signed any document. Controverting the statement of DW5 Baldev Singh, learned counsel for the respondents submitted that no document or resolution has been placed on record to substantiate the statement that Ishar Singh had ever signed. In view of these findings, he submitted that no substantial question of law arises in appeal for consideration and the same deserves dismissal. Having heard learned counsel for the parties, I find force in the submissions made by the learned counsel for the respondents. The fact that the Will was executed merely seven days prior to the death of Ishar Singh and that too when he was not keeping good health, is certainly a suspicious circumstance, if considered in the light of the fact that the distribution of the property is not fair. Another strong suspicion which goes to the root of the case is about Ishar Singh putting his signatures on the Will. Ample evidence has been placed on record by the respondents/ plaintiffs to show that Ishar Singh had never signed any document as he was illiterate as against this mere oral statement of DW5 Baldev Singh could not be relied upon. The respondents/plaintiffs produced in evidence the documents pertaining to thumb impression of deceased Ishar Singh viz. Ex. P-1, P-2 and P-3 are the attested copies of record with regard to opening of account, Ex.PA, is the form of ration card, Ex. P4 is an agreement to sell executed by Ishar Singh in favour of Joginder Singh, Ex.P5 is an entry in the Register of deed-writer on 18.7.1986 regarding agreement to sell, Ex.PW9/A is the copy of suit filed by Ishar Singh against Raghbir Singh, Ex. PW9/B is the vakalatnama of Ishar Singh in the said suit, and PW9/C is an affidavit. To similar effect is that fact with regard to Ishar Singh going to Sub-Tehsil Indri on foot for execution of Will when, in fact, he was admitted in the hospital on 14.2.1995 at 1.30 p.m. Whereas in the statement of DW4 Darbara Singh, it was sought to be pleaded that the deceased Ishar R. S. A No. 3265 of 2006 4 Singh travelled with him two kilometers by foot from Village Gorgarh to Janesari to reach Sub-Tehsil Indri by bus. This cannot be believed as such. In view of my above discussion, I do not find any merit in the appeal. No question of law much less a substantial question of law arises for consideration of this court. According, the appeal is dismissed. 28.8.2008 ( Rajesh Bindal) vs. Judge