R.S.A. No.1089 of 1987 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1089 of 1987 Date of Decision : 24.02.2011 Puran Singh .......Appellant Versus Naurata alias Naranjan Singh and others .......Respondents CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. H.R.Bhardwaj, Advocate, for the appellant. Mr. Arvind Mittal, Advocate, for respondent No.1. Mr. Puneet Sharma, Advocate, for respondent No.6. **** JITENDRA CHAUHAN, J. 1. Naurata alias Naranjan Singh (hereinafter referred to as 'the plaintiff') filed the suit for declaration to the effect that Mansha Singh son of Ishar Singh be presumed to be dead and the plaintiff is the owner in possession to the extent of 1/3rd share in the 1/3rd share of property of Mansha Singh out of land measuring 76 bighas 17 biswas. The following pedigree table will be helpful in understanding the facts of the case properly. Ishar Singh / _______________________________________________ / / / / Mansha Singh Partapa Piara Partapo His property is / (dead) (dead) in dispute. / / / Naurata @ Sampuran Singh Nanak and Naranjan Singh Puran Singh Bachni (plaintiffs) Joginder Singh (defendants) Naurati Shyami (defendants) 1 R.S.A. No.1089 of 1987 2. The plaintiff has pleaded that as the whereabouts of Mansha Singh are not known and he has not been heard for more than 35 years by those who would naturally have heard of him if he had been alive, so he be presumed to be dead. Further the plaintiff alleged that as he has not been heard since 1946 so he succeeded to the share of Mansha Singh to the extent of 1/3rd share. 3. Puran Singh, defendant No.2, appeared and contested the suit on the ground that Mansha Singh had become Udassi Sadhu at the age of 15/16 years. It is alleged that Mansha Singh had been visiting Puran Singh, defendant No.2. Puran Singh, defendant No.2 retired from the Military in the year 1970 and Mansha Singh used to see him frequently. Mansha Singh executed a Will dated 28.02.1983 while he was in U.P. Near Nepal boarder bequeathing his all moveable and immovable property to Puran Singh. It is further alleged that Mansha Singh died on 14.03.1983 at Makhanpur in Uttar Pradesh. 4. Defendants No.3, 4, 6 and 7 did not contest the suit of the plaintiff admitting the claim of the plaintiff. 5. From the pleadings of the parties, the following issues were framed on dated 21.04.1984:- 1. Whether the plaintiff Naurata is the son of Partapa? OPP. 2. Whether the whereabouts of Mansha Singh have not been heard of for more than 35 years? OPP. 3. Whether Mansha Singh died on 14.03.1983 at Makhanpur in U.P.? OPD. 4. Whether Mansha Singh executed a valid Will on 28.02.1983 in favour of Puran Singh defendant? OPD. 5. Whether the suit is not valued for the purpose of Court fee and jurisdiction? OPD. 2 R.S.A. No.1089 of 1987 6. Relief. 6. The learned trial Court after considering the evidence produced by the parties decreed the suit of the plaintiff for declaration to the effect that the plaintiff is the owner in possession to the extent of 1/3rd share in the 1/3rd share of the property of Mansha Singh out of land measuring 76 bighas 17 biswas, situated in Village Dosarna, Tehsil Kharar, District Ropar, holding that Mansha Singh son of Ishar Singh be presumed to be dead. 7. Puran Singh, the alleged beneficiary of the Will, preferred an appeal before the learned District Judge, Ropar, which was also dismissed. 8. This second appeal is preferred by said Puran Singh son of Piara Singh challenging the judgments of both the Courts below. 9. Learned counsel for the appellant submits that the plaintiff must stand on his own legs by proving as to whether he is the son of Partapa Singh or not because jamabandi and mutation Ex.P-1 and Ex.P-2 are not conclusive proof of his being son of Partapa. He further alleged that the plaintiff has not placed any document on record to establish the fact that he is son of Partapa. The learned counsel for the appellant refers to the Ex.D-3, the Death Certificate of Mansha Singh and assailed the findings of both the Courts below in disbelieving the Will Ex.D-2. 10. On the other hand, the learned counsel for the respondents submits that the Will is forged and fictitious document. Both the Courts below have rightly disbelieved the genuineness of the Will. 3 R.S.A. No.1089 of 1987 11. I have heard the learned counsel for the parties and perused the lower Court record with the able assistance of learned counsel for the parties. 12. The main point determination in this appeal is whether Mansha Singh executed a legal, valid and genuine Will dated 28.02.1983 in favour of the appellant. 13. No substantial question of law has either framed or arisen for determination in this appeal. It is a concurrent finding of fact by both the Courts below which this Court will be slow in interfering. 14. However, this Court is examining the case on the point as to whether the Will executed by said Mansha Singh is genuine. It is admitted that Mansha Singh is not heard for the last more than 7 years by those who would naturally have heard of him if he would have been alive. So, the Courts below have rightly held that he be presumed to be dead. 15. The Will in question Ex.D-2 is surrounded by suspicious circumstances. This Court has carefully perused the original Will. There are many circumstances which create doubts regarding the execution and genuineness of the Will. 16. A bare perusal of the Will shows that signature of marginal witnesses namely Jaswant Singh and Surjit Singh are with Blue Ball pen while the entire body of the Will is written in black ink. The scribe of the Will also signed in black ink. It is mandatory that the testator should have signed or thumb marked the Will in the presence of marginal witnesses and that the marginal witnesses have signed the Will in the presence of the testator of the Will. If Jaswant Singh and 4 R.S.A. No.1089 of 1987 Surjit Singh, the marginal witnesses, would have been present at the time of the execution of the Will then naturally he would have signed the Will in the same black ink. This shows that the marginal witnesses were not present at the time of execution of the Will. 17. The Will in question was never got registered from the Sub Registrar of the area. No satisfactory explanation is forthcoming as to why the Will was not registered. The Will is a very important document and its execution is to be proved beyond any doubt. There is no evidence that Mansha Singh was in touch with Puran Singh, beneficiary of the Will. It is not proved that the thumb impression on the Will Ex.D-2 is that of Mansha Singh. The date of execution of the Will is 28.02.1983 and the testator died on 14.03.1983. His age at the time of his death is mentioned as 95 years old. It means the testator died about 14 days after the execution of the Will. There is no evidence on record that he was in sound disposing mind at the time of execution of the Will neither there is any explanation in the Will as to why the natural heirs of the testator were being ignored. The reasons to disinherit the natural heirs from the property by way of execution of this Will by Mansha Singh is not given in the Will. There is no evidence on record that the other heirs of Mansha Singh had strained relations with him during his lifetime. Puran Singh, beneficiary of the Will, has deposed in his statement that he had been receiving letters from Mansha Singh but he could not produced any of such letters. The Will is allegedly attested by a Notary Public. It is not the function of the Notary Public to attest such documents like Will. Moreover, there is no evidence that who had identified the testator before the Notary 5 R.S.A. No.1089 of 1987 Public. There is no evidence that Mansha Singh had special love and affection or affinity with Puran Singh excluding his other brothers namely Partapa and Piara and sister Partapo. So, both the Courts below have rightly held that the Will is surrounded by suspicious circumstances and the Will Ex.D-2 cannot be termed as a legal, valid and genuine document. Both the Courts below had rightly held that Mansha Singh never executed Will dated 28.02.1983 in favour of Puran Singh (appellant herein). Both the Courts below had rightly held that Naurata alias Naranjan Singh is the son of Partapa, brother of the Mansha Singh. 18. There is no other point raised by the counsel for the appellant. 19. Hence, I do not find any merit in this appeal, which is hereby dismissed without costs. ( JITENDRA CHAUHAN ) 24.02.2011 JUDGE Gagan Note: Whether to be referred to reporter ? Yes 6