Regular Second Appeal No.1842 of 1996 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 1842 of 1996 Date of Decision: July 15, 2009 Jatinder Singh and another ...........Appellants Versus Smt.Amar Devi and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Amit Jain,Advocate for the appellants. Mr.K.S.Dadwal, Advocate for the respondents. ** Sabina, J. Amar Devi-plaintiff filed a suit for joint possession. The Sub Judge, II Class Hoshiarpur decreed the suit of the plaintiff. Aggrieved by the same, defendants preferred an appeal. The said appeal was dismissed by the Additional District Judge Hoshiarpur vide judgment and decree dated 22.5.1996. Hence, the present appeal. The case of the parties, as noticed by the learned Additional Distinct Judge in paras 2 of its judgment, reads as under:- “ 2. Defendants No.3 and 4 remained absent inspite of service and they were proceeded against the exparte. Defendants No. 1 and 2 contested the suit and raised preliminary objections that the suit is not maintainable and that the suit is bad for misjoinder of Regular Second Appeal No.1842 of 1996 2 necessary parties. On merits, they admitted the relations between the parties. They have claimed their title on the basis of execution of valid registered Will dated 26.4.1991 by Smt. Chanda Devi in their favour in lieu of services rendered by them. According to them, the suit has been filed at the instance of Mehar Singh with whom there is litigation of defendants No. 1 and 2." On the pleadings of the parties, the following issues were framed :- “1. Whether the plaintiff is the successor of Smt. Chanda Devi?OPP 2. Whether the plaintiff is entitled for joint possession of prayed for?OPP 3. Whether Smt. Chanda Devi has executed will in favour of defendant No.1 and 2?OPD 4. Whether the suit is not maintainable?OPD 5. Whether the suit is bad for misjoinder of necessary parties?OPD 4. Relief.” The substantial questions of law involved in this case are:- “1. Whether the Courts below have drawn wrong inferences from the proved facts and they based their findings on mere conjectures and surmises? 2. Whether the execution of the Will was duly proved?” Plaintiff-Amar Devi filed a suit for joint possession. The case of the plaintiff is that Chanda Devi, mother of the plaintiff and Regular Second Appeal No.1842 of 1996 3 defendants No. 3 and 4 and grand mother of defendants No. 1 and 2, was owner of the property in dispute. She died on 9.7.1991 leaving behind the parties to the suit as her only legal heirs. Plaintiff being daughter of deceased Chanda Devi was entitled to 1/4th share in the suit property. The Will propounded by defendants No. 1 and 2 in their favour alleged to have been executed by Chanda Devi was a forged and fabricated document. The case of the defendants No, 1 and 2, on the other hand, is that Chanda Devi was being looked after by them being her grand sons and on this account, she had executed the Will in question in their favour. Mehar Singh-defendant No.3 and Sheela Devi-defendant No.4 were proceeded ex-parte before the trial Court. The question that requires consideration in this case is as to whether Chanda Devi had executed the Will in question in favour of her grand sons-defendants No. 1 and 2? Both the Courts below after appreciating the evidence on record have held that the Will in question was surrounded by suspicious circumstances and could not be said to be a genuine document and hence, Amar Devi was declared to be in joint possession of the suit property to the extent of 1/4th share. Learned counsel for the appellants has submitted that the Courts below had erred in disbelieving the Will. The Will in question was a registered document. Appellants No.1 and 2 were the only grand sons of the executant. The other son of the executant i.e. defendant No.3 -Mehar Singh was issueless. Plaintiff-Amar Devi and defendant No.4-Sheela Devi were married daughters of executant and hence, they had been rightly deprived of the suit property by the executant. Regular Second Appeal No.1842 of 1996 4 A Will is a document that speaks of the mind of the deceased after his death. The executant of the Will is though never available for deposing as to under what circumstances, he has executed the Will. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will. A Will is required to be proved like any other document. Since the Will is required to be attested and as per Section 68 of the Indian Evidence Act, 1872, at least one attesting witness is required to be examined to prove due execution of the Will. The attesting witness is required to establish that the Will in question was executed by the testator in the presence of attesting witness and they had attested the same in the presence of the testator. In a case where the Will is a registered document then the endorsement made by the Sub Registrar that the Will had been thumb marked or signed by the executant in his presence after it was read over to the executant has a presumption of truth. It is also a settled proposition of law that in connection with Wills execution of which is alleged to be surrounded by suspicious circumstances, the test of satisfaction of judicial conscience has been evolved. That test emphasis that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances, the Court has to be fully satisfied that the Will has been validly executed by the testator. In the present case, the Will in question dated 26.4.1991 is a duly registered document. In order to prove its execution, the defendants Regular Second Appeal No.1842 of 1996 5 have examined T.S.Sohi, Advocate, attesting witness as DW2 and DW1- Gurmukh Singh, deed writer. Gurmukh Singh, deed writer deposed that the Will was scribed by him at the instance of Chanda Devi in the presence of witnesses and it was read over to her. Chanda Devi thumb marked the same after admitting the contents of the Will to be correct in the presence of the witnesses and the witnesses also attested the same in her presence. He had made an entry with regard to the Will in his register at serial No.98. He had seen the original Will which was scribed by him and thumb marked by Chanda Devi and witnesses in the presence of each other. DW2 T.S.Sohi, Advocate corroborated the statement of DW1 with regard to the execution of the Will. The said witness identified his signatures on the Will as well as the thumb impression of the executant. DW2 further deposed that the Will was presented for registration before the Sub Registrar Hoshiarpur and there also after admitting the contents of the Will as correct, Chanda Devi thumb marked the same and he had also attested the endorsement along with other attesting witnesses. So far as DW3 Jatinder Singh is concerned, he has deposed that Chanda Devi was his grand mother . She had executed the Will in his favour and his brother as she had great love and affection for them and was being looked after by them. The factual position is that Chanda Devi had four children i,e. two sons and two daughters. Defendants No. 1 and 2 are the sons of Sher Singh, son of Chanda Devi. The argument of the learned counsel for the appellants to the effect that the defendants No. 1 and 2 were the only grand sons of Chanda Devi is supported by the plaintiff in her cross- Regular Second Appeal No.1842 of 1996 6 examination. Plaintiff in her cross-examination has deposed that Chanda Devi had only two grand sons Jatinder Singh and Surender Singh and there is no other grand son of Chand Devi. Since the appellants were the only grand sons of Chanda Devi, it was natural for her to execute the Will in their favour. The daughters of Chanda Devi i.e. plaintiff-Amar Devi and defendant No.4-Sheela Devi were already married and Mehar Singh, son of Chanda Devi was apparently not having any son. It was natural for Chanda Devi to have excluded them from inheriting her property. Mehar Singh and Sheela Devi have obviously accepted the Will because they have not chosen to appear before the Trial Court and contest the suit. It has also been stated by the plaintiff in her cross-examination that Jatinder Singh and Surender Singh were also residing in village Badla where Chanda Devi was residing. Plaintiff was residing in village Makha near Mukarian whereas her sister Sheela Devi in village Labhar. In these circumstances, it appears that Chanda Devi was being looked after by her grand sons during her life time. DW1 Gurmukh Singh in his cross-examination admitted that at serial No.97, there was an entry in his register with regard to the general power of attorney executed by Smt.Chanda Devi in favour of Jatinder Singh. Merely because Chanda Devi had also executed a general power of attorney in favour of her grand son Jatinder Singh does not make the Will suspicious document. It appears that Chanda Devi wanted that even during her life time, her grand son Jatinder Singh should look after the property and after her death, her property should be inherited by both her grand sons. Although, in the Will in question, no reason has been given as to why the executant was depriving her daughters and her son Mehar Singh of her Regular Second Appeal No.1842 of 1996 7 property but this in itself, in the facts and circumstances of present case, cannot be said to have made the will a suspicious document. The executant of the Will was 80 years old at the time of execution of the Will and had deprived her daughters from her property as they were already married. Plaintiff has given her age as 50 years when she appeared in the witness box and has described herself in the plaint as wife of Banka Ram. The property in question, as per the plaintiff in her cross- examination, had come to Chanda Devi from her husband Shiv Dayal. Plaintiff in her cross examination has stated that Shiv Dayal had given the property to Chanda Devi during his life time and in these circumstances, Chanda Devi could dispose of the property in the manner she liked. Both the Courts below have,thus, drawn wrong inferences from the proved facts in coming to the conclusion that the Will in question was a suspicious document. Rather the appellants had been successful in proving due execution of the Will and the same cannot be said to be surrounded by suspicious circumstances. The substantial questions of law arising in this appeal are answered accordingly. Hence, this appeal is allowed. Judgment and decree of the Courts below are set aside and the suit of the plaintiff is dismissed with no order as to costs. ( Sabina ) Judge July 15, 2009 arya