THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2384 of 2007 Date of decision: 7th November, 2008 Jaspal Kaur and others … Appellants Versus Rattan Kaur and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sarju Puri, Advocate for the appellants. Mr. H.S. Dhandi, Advocate for respondent No.1 to 3. Mrs. Jatinderjit Kaur, Advocate for the respondent No.4. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Ujagar Singh had executed a Will dated 21st December, 1993 in favour of the Jaspal Kaur appellant No.1 and Narinder Singh appellant No.2. This is stated to be a registered Will. Gurdev Singh defendant respondent No.4 had set up a Will dated 10th January, 1994, which is also a registered Will. As to when Ujagar Singh died, no evidence is coming forth. Ujagar Singh was survived by Rattan Kaur (widow) and two daughters, namely Harbhajan Kaur alas Rashpal Kaur and Surinder Kaur. The widow and two daughters had filed a suit for declaration that they are owners in possession to the extent of 1/5th share described and detailed in the head note of the plaint. They have also impleaded Gurdev Singh, their brother as defendant No.1. Ujagar Singh had two sons, namely Gurdev Singh and Kashmir Singh. Kashmir Singh is no more. Appellant Jaspal Kaur and Narinder Singh are widow and son of Kashmir Singh. Kashmir Singh had also a daughter namely, Mandeep Kaur appellant No.3. Rattan Kaur and her daughters Harbhajan Kaur and Surinder Kaur had impleaded Gurdev Singh, Jaspal Kaur, Narinder Singh and Mandeep Kaur as defendants to the suit. In the plaint filed, it was Regular Second Appeal No.2384 of 2007 averred that plaintiffs are the legal representatives of Ujagar Singh and defendants are pronouncing their claim over the suit property and they have threatened to dispossess them. Gurdev Singh son of Ujagar Singh defendant respondent appeared and had set up a Will dated 10th January, 1994. As per this Will, the estate has to devolve upon Gurdev Singh and Kashmir Singh, both the sons in equal shares. Gurdev Singh further stated that on the basis of this Will, mutation has been sanctioned. Appellant appeared as defendant and relied upon the Will dated 21st December, 1993, claiming that Ujagar Singh was residing with them and due to the services rendered, Ujagar Singh has executed Will dated 21st December, 1993 in favour of the appellant Jaspal Kaur and Narinder Singh. Before the trial Court, both the Wills were not proved. Gurdev Singh had not appeared in evidence and examined no witness to prove the Will dated 10th January, 1994, which is said to be the last Will of the testator Ujagar Singh. To prove earlier Will dated 21st December, 1993, Jaspal Kaur appeared as a witness, tendered her affidavit in shape of deposition in evidence. Later, she never appeared for cross-examination. Therefore, learned Trial Court rightly ignored both the Wills and followed the principle of succession among the natural legal heirs and ordered as under: “16. In view of my findings on above said issues, suit of the plaintiffs is decreed to the effect that plaintiffs are owners in possession to the extent of 1/5th shares each in the suit property. Defendant No.1 is owner of 1/5th share and defendants Nos.2 to 4 alongwith plaintiff No.1 are the owners of remaining 1/5th share of the estate of deceased Ujagar Singh being class I legal heirs of deceased Kashmir Singh. Plaintiffs are also entitled to get the possession of their shares in the suit property and their suit for possession is also decreed. Decree sheet be prepared accordingly and file be consigned.” 2 Regular Second Appeal No.2384 of 2007 The findings of the trial Court were concurred by the lower appellate Court. Mr.Sarju Puri appearing for the appellants, filed misc. application bearing No.6771-C of 2007 to state that he be permitted to lead additional evidence in support of the registered Will dated 21st December, 1993. To counter this, Mr.H.S. Dhandi and Mrs.Jatinderjit Kaur has stated that agreement was arrived at between the parties that the natural succession be adhered to. Therefore, Gurdev Singh had not come forward to prove the Will dated 10th January, 1994 and also Jaspal Kaur abandoned her claim by not appearing in cross-examination. Therefore, they stated that it is too late in the day now to pursue the application for additional evidence. The proceedings initiated between the parties have to culminate. Once a party got adequate opportunity to set up and prove its case and abandoned the claim by not appearing in cross-examination, later no premium can be extended for the default and this Court cannot determine whether the same was intentional or due to a lapse. Having rejected the application for additional evidence, nothing survives in the present appeal as the two courts below have returned a concurrent finding of fact as no evidence was coming forth to prove the two Wills dated 21st December, 1993 in favour of the appellant and subsequent Will dated 10th January, 1994 in favour of Gurdev Singh defendant. In view of this, no substantial question of law arises and no interference by this Court is warranted. Hence, the present appeal is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE November 07, 2008 rps 3