RSA No.3805 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 3805 of 2009 (O&M) Date of Decision:October 24, 2009 Smt.Chandrawati and others ...........Appellants Versus Smt.Kamlesh ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.B.R.Mahajan, Advocate for the appellant. ** Sabina, J. Plaintiff filed a suit for declaration. The suit of the plaintiff was decreed by the Civil Judge (Junior Division) Hansi vide judgment and decree dated 13.12.2005 The appeal filed by the defendants was dismissed by the Additional District Judge, (Fast Track Court) Hisar vide judgment and decree dated 31.8.2009. Hence, the present appeal by the defendants. The case of the parties, as noticed by the learned Additional District Judge, in paras 2 and 3 of its judgment reads as under:- “2. The facts of the case, in brief, are that the plaintiff sought a relief for declaration to the effect that she is owner in possession of the land measuring 32 kanal comprised in khasra No.66//1/4(4- RSA No.3805 of 2009 (O&M) 2 0),9/2(4-0),66//10(8-0),11(8-0), 12(8-0), situated at village Hazampur, Tehsil Hansi, District Hisar by setting aside the mutation No.1783 sanctioned on 15.9.1997 regarding the suit land on the averments that she is owner in possession of the disputed land on the basis of the registered will No.31 dated 21.5.1997 executed by her father-in-law Suraj Bhan, in lieu of the services rendered by her; that after the death of Suraj Bhan on 13.8.1997, the defendants (Legal heirs of Suraj Bhan) got sanctioned the impugned mutation regarding the suit land in their favour. As per the plaintiff, when she came to know about the impugned mutation, she filed an application dated 2.9.1998 before D.R.O., Hisar who forwarded the same to the Field Kaungo on the application moved by the plaintiff, thereafter, the report of Field Kanungo was forwarded by Naib Tehsildar to Sub Divisional Magistrate, Hansi to review the mutation. The SDM, Hansi while exercising powers of Collector forwarded the report to Deputy Collector, Hisar but instead of reviewing the impugned mutation, Deputy Collector, Hisar directed the plaintiff to file an appeal. As per the plaintiff, she never received the said order passed by Deputy Collector, Hisar, Hence, the suit. 3. On notice, the defendants appeared, During pendency defendant No.1 and defendant No.7 (i) and defendant No.3 expired and their LRs were already on record. Also, defendants No. 4,5 and 8 were proceeded ex-parte. The legal heirs of defendant No.1 filed joint written statement, whereas, defendant No.2 filed separate written statement,whereas defendants no. 6,7 RSA No.3805 of 2009 (O&M) 3 (ii) and 8 filed joint written statement. The written statement filed by aforesaid defendants was similar wherein preliminary objections regarding maintainability, cause of action, estoppel, locus standi, limitation, non-joinder of necessary parties, jurisdiction etc. It was denied that the plaintiff is owner in possession of the disputed property. It was also stated that the defendants No. 2 and 4 executed a release deed bearing No.1870 dated 12.10.2000 qua their share in favour of the defendant No.1 regarding which mutation No.1906 was also sanctioned on 12.1.2001. It was averred that the impugned mutation has been rightly sanctioned and after the death of Suraj Bhan his share was succeeded by the answering defendants. It was further stated that from the very beginning the plaintiff was aware of the sanction of impugned mutation. It was also averred that the disputed property as well as the remaining property of deceased Suraj Bhan was Joint Hindu Ancestral Property and while stating that the will dated 21.5.1997 is forged and fabricated a prayer for dismissal of the suit was made. On the pleadings of the parties, the following issues were framed by the trial Court:- "1. Whether the plaintiff is owner in possession of the disputed property on the basis of registered will dated 21.5.1997?OPP 2. Whether mutation No. 1783 dated 15.9.1997qua suit land is against law and facts and as such is liable to be set aside?OPP 3. Whether the plaintiff has no locus standi and cause of action to file the present suit?OPD RSA No.3805 of 2009 (O&M) 4 4. Whether the suit is not maintainable?OPD 5. Whether the plaintiff is estopped by his own act and conduct from filing the present suit?OPD 6.Whether the suit is barred by limitation?OPD 7.Whether the suit is bad for mis-joinder and non-joinder of necessary parties?OPD 6. Whether the plaintiff has not come to the court with clean hands ?OPD 7. Whether the civil court has no jurisdiction to try and entertain the present suit?OPD 8. Relief". After hearing the learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Plaintiff had filed a suit seeking a declaration that she was owner in possession of the suit land basing reliance on Will dated 21.5.1997 executed by her father-in-law, Suraj Bhan in her favour. Both the Courts below have held that the Will in question was a genuine document. 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 RSA No.3805 of 2009 (O&M) 5 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, plaintiff, in order to prove her case, examined PW3 Surinder Kaur and PW4 Krishan Kumar, Attesting Witness of the Will. The said witness deposed with regard to the due execution of the Will by Suraj Bhan in favour of the plaintiff. The Will in question also carries photograph of the executant-Suraj Bhan. The Will in question is a registered document . Although registration of the Will is not compulsory yet it goes a long way in proving the genuineness of the Will. The endorsement made on the Will by the Registrar carries a presumption of truth and there is no rebuttal to that. Merely because the other legal heirs have been excluded by the executant from inheriting his property is no ground to disbelieve the Will because Will is deviation from natural RSA No.3805 of 2009 (O&M) 6 succession and executant by executing the Will can exclude some of the legal heirs from inheriting his property. The defendants had failed to establish that the property in question was ancestral property of the executant. The executant has not executed the Will in favour of a stranger but has executed the same in favour of his daughter- in- law who was looking after him. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge October 24, 2009 arya