CM No.12249-C of 2008 & RSA No.2071 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.12249-C of 2008 & RSA No.2071 of 2008 (O&M) Decided on : 14.09.2009 Smt. Harpinder Kaur & others ... Appellants versus Karnail Singh & others ...Respondents CORAM : HON'BLE MR. JUSTICE AJAY TEWARI Present : Mr. R.C.Dogra, Sr. Advocate for the appellants. Mr. L.S. Bhangu, Sr. Advocate for respondents. **** 1.Whether Reporters of local newspapers may be allowed to see the judgment? 2.To be referred to the reporters or not? 3.Whether the judgment should be reported in the Digest? AJAY TEWARI, J. (ORAL) CM No.12249-C of 2008 For the reasons mentioned in the application, the same is allowed. L.R's of respondent No.8 - Bachan Kaur, as mentioned in the application, are already on record as respondents No.1 to 7. Registry is directed to make necessary corrections in the memo of parties. CM stands disposed of. CM No.12249-C of 2008 & RSA No.2071 of 2008 (O&M) -2- RSA No.2071 of 2008 This order shall also dispose of RSA Nos.2157 & 4180 of 2008 as common questions of facts and law are involved. This appeal has been filed against the concurrent judgments of the Courts below dismissing the suit of the appellants, with regard to the property of Pritam Singh (whose father's sister's grand children are the respondents), for declaration on the basis of a Will and for permanent injunction restraining the respondents from interfering in their possession. Both the Courts below have held that the appellants have not been able to prove the Will in their favour. Before this Court, an application for additional evidence has been filed praying for permission to record the statements of the attesting witnesses on the ground that the statement regarding closing of evidence was wrongly made by the counsel before the Trial Court. However, no reason has been given as to why this application was not moved before the Trial Court or the Lower Appellate Court. Consequently, I find no merit in this application and reject the same. Both the Courts below, however, found that the appellants were in possession of the property in dispute. The ld. Lower Appellate Court also held that the present suit was barred under Order 2 Rule 2 as well as under Explanation 4 to Section 11 of CPC. The following questions have been proposed: CM No.12249-C of 2008 & RSA No.2071 of 2008 (O&M) -3- i) Whether in the facts and circumstances of the case when the attesting witnesses are not coming in the witness box inspite of the efforts made by the person in whose favour the Will is executed and claim illegal demand, the courts drop their summoning the evidence by the other circumstances such as the scribe, the expert and the Sub Registrar and its official registering the Will is sufficient evidence by them to prove the execution of the document? ii) Whether in the facts and circumstances of the case when the respondents challenging the Will having not denied the specifically the signatures/fixation of thumb impression of the attesting witnesses still the other evidence connected prove the due execution and registration of the Will permitted to prove the due and legal execution of same Will? iii)Whether the change by the executor towards the legatee before the execution and death to treat him as his heir and manager of his estate is sufficient to presume the execution of Will in his favour when acted upon and duly recorded in the Revenue Record? iv) Whether the respondents who did claim themselves to be agnates can be granted a relief on any other count by the Court without pleading the same or proof thereof when there can be other CM No.12249-C of 2008 & RSA No.2071 of 2008 (O&M) -4- successor in between the agnates and cognates under the Hindu Law? Questions No.(i) to (iii) are pure questions of fact relating to the execution of Will. Learned counsel has not been able to persuade me that the findings recorded thereon are either based on no evidence or are based on such misreading of evidence so as to render them perverse as to be liable to interference under Section 100 of CPC. With regard to question No.(iv), the ld. Lower Appellate Court has rightly held that even if the respondents have not been able to prove that they were agnates of Pritam Singh; qua the appellants, they are in any case better entitled to inherit the property. Holding all the proposed questions against the appellants, this appeal as well as RSA No.2157 and Cross-Appeal No.4180 of 2008 and application for stay are dismissed. September 14, 2009 (AJAY TEWARI) sonia JUDGE