R.S.A.No. No. 882 of 2007(O&M) -1- In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. No. 882 of 2007(O&M) Date of Decision:August 20, 2009 Ram Saran ---Appellant versus Khushpal Singh ---Respondent Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr. Deepak Gupta,Advocate, for the appellant Mr.K.S.Sidhu,Senior Advocate, with Mr. Vikrant Oberoi, Advocate for the respondent. *** SABINA J. Plaintiff – Ram Saran had filed a suit for declaration. Civil Judge ( Jr. Division), Ambala City vide judgment and decree dated 5.2.2004 decreed the suit of the plaintiff. Aggrieved by the same, defendant preferred an appeal and the same was allowed by Additional District Judge(Fast Track Court), Ambala vide judgment and decree dated 17.1.2007. Hence, the present appeal by the plaintiff. The facts of the case as noticed by the learned Additional District Judge(Fast Track Court), in paras 2 to 4 of its judgment read as R.S.A.No. No. 882 of 2007(O&M) -2- under:- “Few of the facts which are necessary to be jotted down to adjudicate the controversy between the parties and which can be gathered from the pleadings of the parties are that the respondent-plaintiff brought a suit for declaration that he be declared owner of the suit land as fully detailed in the head note of the plaint. A decree for mandatory injunction was also sought for directing the present appellant to hand over the possession of 34 Kanals of land given to the present appeal under orders of the Assistant Collector Ist Grade, Ambala. 3. The dispute between the parties as a matter of fact pertains to the inheritance of land from late Smt. Punjabi. The parties to the litigation are nephews of Smt. Punjabi being sons of two brothers of the husband of Smt. Punjabi. It was maintained by the respondent-plaintiff that Smt. Punjabi was being looked after very nicely by him during her life time and she bequeathed her land and estate in favour of the respondent- plaintiff by way of will dated 4.4.1989. It was also pleaded by the respondent-plaintiff that in the life time of Smt. Punjabi and after her death it is the plaintiff who is in possession of the land of Smt. Punjabi. It was alleged that the parties to the suit had compromised and some of the land was given to the defendant by the plaintiff and some sort of exchange had taken place between the parties. On the basis of the said exchange and settlement the land was partitioned also between the parties to the litigation and the parties came in possession of the specific R.S.A.No. No. 882 of 2007(O&M) -3- khasra numbers. Thereafter, the present appellant started denying the factum of exchange and settlement between them and the title of the plaintiff was also denied over the suit land which necessitated the filing of the present suit. 4. On notice being given the suit was contested by the pre3sent appellant by submitting that the same was not maintainable and the plaintiff was having no locus standi to file the suit. The suit was stated to be without cause of action and the plaintiff was termed guilty of concealment of material facts from the court. The relationship between the parties to the litigation is not a bone of contention between the parties but at the same time it was added that Smt. Punjabi used to reside with the appellant till her death and during her life time she had executed will dated 1.2.1988 in favour of the appellant and respondent in equal shares regarding her estate. The will dated 4.4.89 in favour of the plaintiff was stated to be a false and forged document and never conveyed any title to the plaintiff. The factum of exchange or settlement was denied and it was pleaded that both the plaintiff and appellant were in possession of equal shares of the land left by Smt. Punjabi. The suit was stated to be a blackmailing tactic adopted by the plaintiff and it was averred that the suit was liable to be dismissed with special costs under Section 35A CPC. It was also put forth that the appellant and the plaintiff are owners to be the extent of one- half share in land measuring 201 kanals 1 marlas more particularly described in the written statement and the entire ; R.S.A.No. No. 882 of 2007(O&M) -4- and was stated to be in joint possession of the parties which was yet to be partitioned. A prayer was made for dismissal of the suit. On the pleadings of the parties, trial court framed the following issues:- “(1)Whether Smt. Punjabi executed a valid will dated 4.4.89 in favour of the plaintiff, if so to what effect? OPP (2) Whether the plaintiff and defendant are in possession of specific khasra number after the partition and mutual exchange, as alleged? 2.A Whether the plaintiff is entitled to possession of 34 K of land as per order of A.C.Ist Grade as alleged? OPP (3)Whether the defendant relinquished his right in 30-K of land ? OPD (4)Whether Smt. Punjabi executed a will dated 1.2.1998 in favour of the plaintiff, if so to what effect? OPD (5)Whether the suit of the plaintiff is not maintainable in the present form? OPD (6)Whether the plaintiff has no locus standi to file the present suit? OPD (7)Whether the plaintiff has suppressed the material facts from the court, if so, it what effect? OPD (8)Whether the plaintiff has no cause of action against the defendant? OPD (9)Whether the defendant is entitled to special costs under Sectio0n 35-A CPC? OPD R.S.A.No. No. 882 of 2007(O&M) -5- (10)Relief. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Plaintiff had filed a suit for declaration that he was owner in possession of the suit land. Plaintiff had placed reliance on Will dated 4.4.1989 alleged to have been executed by Smt. Punjabi in his favour. Both the plaintiff and defendant are nephews of Smt. Punjabi, since deceased. She was not having any child of her own. The case of the plaintiff is that Smt. Punjabi had executed a Will in his favour on 4.4.89 (Ex. P-1)and the Will dated 1.2.1988 was not a genuine Will. As per mutation (Ex. D-1), Smt. Punjabi died on 7.5.1989 and thereafter dispute arose between the parties regarding her property. 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 witnesses and they had attested the same in the presence of the testator. In a case where the Will is a registered document R.S.A.No. No. 882 of 2007(O&M) -6- 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. Both the Wills in this case i.e. Will dated 4.4.1989(Ex. P-1) and Will dated 1.2.1988(Ex. P-2) are unregistered Wills. Although registration of Will is not compulsory yet it goes a long way in proving the genuineness of the Will. Since both the Wills are un-registered documents, they have to be scrutinized more carefully. In order to prove Will dated 4.4.1989( Ex. P-1), plaintiff examined PW-1 Harbans Singh and PW-2 Gurpal Singh, attesting witnesses to the Will. The said witnesses have deposed with regard to the due execution of the Will. Plaintiff himself stepped into the witness box as PW-3 and deposed as per his case. Thus, technically the execution of the Will has been proved by the plaintiff. However, a perusal of the Will reveals that every effort has been made in the Will as to why defendant Kushpal Singh was being deprived of the property of the executant. PW-2 Gurpal Singh in his cross examination has admitted that the land in dispute was being cultivated by Khushpal Singh as well as Ram Saran.Thus, it leads to the inference that the relations between the executant and the R.S.A.No. No. 882 of 2007(O&M) -7- defendant were cordial as she had allowed the dependents to cultivate her land. In these circumstances, the learned Appellate Court had rightly held that the said circumstance had made the Will a suspicious one. The executant was not having any child of her own and could not execute a Will in favour of any person. It was not required by the executant to have given reasons for depriving her nephew-defendant. PW-1 Harbans Singh deposed in his cross examination that plaintiff-Ram Saran was already present in the village Kurdi two days before execution of the Will and remained present till the date, the Will was executed. This shows that the plaintiff had taken active part in the execution of the Will in his favour and the said fact also renders the Will a suspicious document. Mutation Ex. D-1 was sanctioned on the basis of Will dated 1.2.1988 (Ex. P-2) on 5.7.1990. There is no explanation as to why the Will Ex. P-1 was not produced by the plaintiff before or at the time of sanction of mutation. The Will in original or its copy was not also attached with the plaint by the plaintiff at the time of filing of the suit and was rather made available on record on 27.2.1997 on an application filed by the defendant. The facts discussed above, leads to the inference that the Will Ex. P-1 was not a genuine document and was surrounded by suspicious circumstance and was thus, rightly held to be not a genuine document by learned Additional District Judge. Will Ex. D-2 is dated 1.2.1988. As per the said Will, the executant bequeathed her property equally to plaintiff and defendant. In order to prove the due execution of the said Will, defendant examined DW- 2 Vijay Singh, DW-3 Bhag Singh attesting witnesses to the Will. Both the said witnesses have duly proved execution of the Will. Mutation with R.S.A.No. No. 882 of 2007(O&M) -8- regard to the property of the executant was also sanctioned on the basis of the Will Ex. D-2. It has come in evidence that the land of the executant was being cultivated by plaintiff as well as defendant and in these circumstances, it was natural for the executant to have executed the Will in favour of her both nephews i.e. Plaintiff and defendant. In these circumstances, learned Additional District Judge had rightly dismissed the suit of the plaintiff and held that the parties were entitled to inheritance of the property equally on the basis of Will Ex. D-2. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE August 20, 2009 PARAMJIT