RSA No.3690 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3690 of 2010 (O & M) Date of Decision: 17.12.2010. Ram Kumar .....Appellant Versus Yashpal and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Vishwajit Bedi, Advocate for the appellant. L. N. MITTAL, J (ORAL) CM No.10820-C of 2010 Allowed as prayed for. CM No.10821-C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 25 days in filing the appeal is condoned. Main Appeal. Palintiff-Ram Kumar, having failed in both the Courts below, is in second appeal. Appellant-plaintiff filed suit against his real brother Yash Pal and mother Bhagwanti (since deceased and represented by respondent Nos.2 to 9) seeking declaration that registered Will dated 05.12.2003 executed by plaintiff's father Raghbir Chand in favour of plaintiff and defendant No.1 regarding suit property is legal and valid. Plaintiff also sought permanent injunction. Plaintiff's case is that his deceased father was owner of RSA No.3690 of 2010 (O & M) -2- the suit house which was his self-acquired property. He bequeathed it in favour of plaintiff and defendant No.1 in equal shares vide registered Will dated 05.12.2003. Some other property was given to a third son Ram Kumar and some other property was given to a fourth son Yash Pal. Plaintiff's father died 10-12 days after executing the Will. Accordingly, on the basis of Will, plaintiff claimed half share in the suit property. It was alleged that he is in possession of western side half portion whereas remaining half share has been taken by defendant No.1, who is in possession thereof. Defendants have no right, title or concern with half share of the house which is in possession of the plaintiff. Defendant No.1 remained ex parte in the trial Court. Defendant No.2, who was mother of plaintiff and defendant No.1, contested the suit. Defendant No.2 admitted that plaintiff's father i.e husband of defendant No.2 was owner of the suit property which was purchased by defendant No.2 and her husband Raghbir Chand, although sale deed was registered in the name of Raghbir Chand alone. Execution of the impugned Will set up by the plaintiff was denied. It was also denied that plaintiff is in physical possession of the suit property. On the contrary, defendant No.2 is residing in western side portion of the suit property. The alleged Will was not executed by Raghbir Chand. There was no reason for disinheriting defendant No.2 or for ousting her. On the contrary, the deceased Raghbir Chand had been neglected by his sons and was being looked after by his wife i.e defendant No.2. Provision for payment of Rs.250/- per month each by plaintiff and defendant No.1 to defendant No.2 under the Will is highly unreasonable and insufficient. The Will RSA No.3690 of 2010 (O & M) -3- does not make any provision for residence of defendant No.2. On the contrary, Raghbir Chand had disowned both plaintiff and defendant No.1 by publication of notices in newspapers Chardikala, Patiala dated 06.07.2002 and newspaper Ranjit dated 18.07.1991. The said notices were never revoked by the deceased and there was no reason for executing the impugned Will in favour of plaintiff and defendant No.1. Various other pleas were also raised. Learned Civil Judge (Junior Division), Patiala vide judgment and decree dated 15.09.2006 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Patiala vide judgment and decree dated 02.03.2010. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that the impugned Will is registered one and its execution by the deceased testator Raghbir Chand is duly proved by the testimony of Rulda Singh one of the attesting witnesses of the Will. I have carefully considered the aforesaid contention, but find no merit therein. At the outset, it has to be noticed that suit was filed by plaintiff against Yash Pal and Bhagwanti only. Plaintiff and Yash Pal-defendant No.1 are beneficiaries under the impugned Will. Respondents No.2 to 9 have been impleaded as legal representatives of Bhagwanti defendant No.2 since deceased, who was mother of plaintiff and defendant No.1. Perusal of the file reveals that Raghubir Chand also left behind three other sons Om RSA No.3690 of 2010 (O & M) -4- Parkash, Yash Pal and Madan Lal (respondents No.2 to 4) in addition to plaintiff and defendant No.1. It appears that Raghbir Chand had also another son Sham Singh now represented by respondent Nos.6 to 8. All of them were also natural heirs of Raghbir Chand. However, they were not impleaded as party to the suit. In their absence, the plaintiff could not seek declaration regarding validity of alleged Will dated 05.12.2003 because the said Will also adversely effected the rights of respondent Nos.2 to 9. Execution of the Will in question by Raghbir Chand is also not duly proved. Rulda Singh PW-2 has not made statement in accordance with the provisions of Section 63 of the Indian Succession Act, 1955 to prove the Will. Rulda Singh PW-2 has not stated that the Will was signed by the testator and attested by both witnesses in the presence of one another. Rulda Singh has also not stated that the Will was read over to the testator and he signed the same after admitting its contents to be correct. Rulda Singh has also not stated that the other attesting witness of the Will had also signed the Will in the presence of this witness i.e Rulda Singh or in the presence of the testator. Consequently, requirements of Section 63 of the Indian Succession Act, 1955 for execution of a valid Will have not been satisfied by the evidence led by the plaintiff. In addition to it, the Will is surrounded by so many suspicious circumstance noticed in detail by both the Courts below. At the outset, it has to be noticed that testator Raghbir Chand had disowned the plaintiff and defendant No.1 in whose favour the Will is said to have been executed. Raghbir Chand had published notices in this regard in newspapers dated 18.07.1991 and 06.07.2002 and, RSA No.3690 of 2010 (O & M) -5- therefore, there was no occasion for Raghbir Chand to execute Will dated 05.12.2003 in favour of plaintiff and defendant No.1. Moreover, Raghbir Chand died 10-12 days after the execution of the alleged Will. This circumstance by itself may not be sufficient to discard the Will, but cumulatively considered with other circumstances, this also becomes a significant suspicious circumstance. There is also no reason why the testator would disinherit his wife defendant No.2 without making any appropriate provision for her residence and maintenance. The Will stipulated that plaintiff and defendant No.1 would pay Rs.250/- per month each to defendant No.2. However, petty amount of Rs.500/- per month only is not sufficient for maintaining of a person in these days of sky rocketing prices. On the contrary, defendant No.2 was an old lady and would require additional amount for her health problems. No provision was either made for her residence in the suit house or anywhere else. Without shelter, defendant No.2 could not maintain herself with meagre amount of Rs.500/- per month. Statement of Rulda Singh has also been found to be discrepant in other respects by the Courts below. Both the Courts below have analyzed the evidence in detail and have come to concurrent finding that Will set up by the plaintiff is not genuine, legal or valid Will. Its execution is not proved. It is surrounded by suspicious circumstances. The Will has, therefore, been rightly discarded. The concurrent finding recorded by the Courts below is based on proper appreciation of evidence and is fully justified by the evidence on record and is supported by cogent reasons. The said finding does not call for interference in second RSA No.3690 of 2010 (O & M) -6- appeal as it is not shown to be perverse or illegal in any manner. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of any merit and is accordingly dismissed in limine. 17.12.2010. ( L. N. MITTAL ) A. Kaundal JUDGE