R.S.A.No.4345 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.4345 of 2006 Date of Decision : 20.7.2009 Ram Parkash ...Appellant Versus Ashok Kumar and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. V.G.Dogra, Advocate, for the appellant. Mr. G.S.Nagra, Advocate, for respondent No.1. Mr. Pritam Saini, Advocate, for respondent Nos.3 to 7. HEMANT GUPTA, J. (ORAL) This order shall dispose of R.S.A.No.4345 of 2006 arising out of Civil Suit No.319 of 23.7.1996 for declaration and permanent injunction, in which the appellant is plaintiff and R.S.A.No.4346 of 2006 arising out of Civil Suit No.164 of 30.5.1996 in which the appellant is defendant No.2 filed by the Ashok Kumar for permanent injunction. Ram Parkash one of the sons of Jagan Nath, is in second appeal aggrieved against the judgment and decree passed by the Courts below, in two suits in respect of the estate of Jagan Nath. The appellant has filed suit No.319 of 23.7.1996 claiming the estate of deceased Jagan Nath by virtue of natural succession, whereas suit No.164 of 30.5.1996 was filed by Ashok Kumar, another son of deceased Jagan Nath, claiming the estate of his deceased father on the R.S.A.No.4345 of 2006 2 basis of Will dated 14.5.1993. Both the Courts have returned a finding that the Will dated 14.5.1993 was proved to be executed and was not surrounded by suspicious circumstances. In view of the said finding, the suit filed by Ashok Kumar was decreed and that of Ram Parkash was dismissed. Jagan Nath died on 1.5.1996 and his wife Satya Devi died few days earlier i.e. on 19.4.1996. Jagan Nath has two sons namely Ashok Kumar, Ram Parkash and six daughters. Ashok Kumar propounded a registered Will dated 14.5.1993 attested by Fateh Din (PW-2) and scribed by Sham Lal (PW-1). The plaintiff Ashok Kumar in his suit also examined Parshotam Dass, Sub Registrar (PW-3) and Dr. A.K.Singla (PW-8) hand-writing expert, to prove the signatures of Jagan Nath on the disputed Will. On the other hand, the appellant has appeared as his own witness and also examined K.N.Parshad, Document Expert (DW-2). On the basis of evidence led by Ashok Kumar, he was able to prove the execution of the Will and that the said Will is not surrounded by any suspicious circumstance. Such findings having been affirmed in second appeal. Learned counsel for the appellant has vehemently argued that Mushtaq Ahmed, Lamberdar, the other attesting witness of Will dated 14.5.1993 has not been examined. He has given an affidavit, wherein he has denied the fact that he witnessed the Will dated 14.5.1993. Therefore, the finding recorded by the Courts below in respect of execution of the Will cannot be sustained. It is also argued that no provision has been made in respect of 6 daughters and that of present appellant, whereas minor share was given to Satya Devi wife of Jagan R.S.A.No.4345 of 2006 3 Nath. Such facts show that the Will is surrounded by suspicious circumstances. It is also argued that Fateh Din, the attesting witness examined by Ashok Kumar is none else but a tenant under Ashok Kumar and, thus, a interested witness. Therefore, his statement cannot be made basis for holding that the Will stands executed. Having heard learned counsel for the parties at some length, I do not find any merit in the arguments raised by the learned counsel for the appellant. The Will is always executed so as to disturb natural succession. Therefore, the mere fact that no provision was made in respect of the present appellant or six daughters, itself is not sufficient to return a finding that the execution of the Will is not proved or it is surrounded by suspicious circumstances. The argument that Fateh Din is a tenant under Ashok Kumar and, thus, interested witness, is again not tenable. Admittedly, Fateh Din is not related to any of the parties. He is not beneficiary in any manner. An attesting witness is the one to have confidence of testator. Since, the witness was from the same city in which the property is situated, the mere fact that he is tenant under one of the beneficiary will not render the Will as not proved. The witness has been cross-examined by the defendants. His testimony has not been shattered in any manner. Apart from the testimony of the attesting witness, the surrounding circumstances such as the statements of a Deed Writer, Sub Registrar and the document expert all go to prove that Will dated 14.5.1993 was executed. Both the Courts below, have recorded findings of fact on the basis of evidence led by the parties in respect of the execution of Will and that the Will is not surrounded by suspicious circumstances. Such R.S.A.No.4345 of 2006 4 findings are sought to be disputed by reappreciation of evidence in second appeal. In view of the above, I do not find that any substantial question of law arises for consideration by this Court in second appeal. Dismissed. 20.7.2009 (HEMANT GUPTA) Vimal JUDGE