RSA No. 2287 of 2008 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No. 2287 of 2008 Date of Decision: 15.10.2008 **** Ajaib Singh …. Appellant/defendant(s) Vs. Surinder Singh and another ….Respondent(s) **** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.R.K.Girdhar, Advocate for the appellant/defendant. **** RAKESH KUMAR JAIN, J. This is an appeal by the defendant against the judgment and decree of both the courts below. Tersely, the facts of the case are that plaintiffs Surinder Singh and Baljinder Kaur are son and daughter of Jaspal Kaur wife of Ajaib Singh (defendant). The defendant was not having cordial relations with his wife Jaspal Kaur. Ajaib Singh (defendant) entered into a second marriage with Darshan Kaur and was residing separately with her at village Maur, District Bathinda, whereas, the plaintiffs were residing with their mother Jaspal Kaur at Malout. Jaspal Kaur executed a Will dated 20.2.1997 in favour of the plaintiffs with her own free mind. Jaspal Kaur died on 7.3.1998. On the basis of the said Will, plaintiffs had become owners in possession of the suit land in equal shares by virtue of mutation No. 24626 dated 17.6.2001 but the defendant by RSA No. 2287 of 2008 - 2 - misrepresentation got the mutation cancelled from the Appellate Authority and obtained mutation of inheritance. The plaintiffs filed the present suit for declaration in which the mutation of inheritance obtained by defendant by misrepresentation has been challenged. In the written statement, defendant denied that he was not in good terms with Jaspal Kaur rather pleaded that since Jaspal Kaur remained ill, therefore, defendant contacted second marriage with Darshan Kaur about thirty years back. However, it was admitted that Jaspal Kaur moved an application of maintenance against him under Section 125 of the Cr.P.C. Learned counsel for the appellant has vehemently argued that Will Ex.P1 is surrounded by suspicious circumstances as PW.2 Darshan Singh attesting witness of the Will has admitted in his cross-examination that the Will Ex.P1 was already written and signed. PW3 Gurmeet was not a regular deed writer although, the regular deed writers are available in Malout City which is 2 K.Ms away from Malout village. It is further contended by counsel for the appellant that Will has been written on a blank page which was already thumb marked by the testator as there is no uniform space in between the lines in the Will and since there was two thumb marks on the Will, the same is not free from suspicion. I have heard learned counsel for the appellant and perused the record. There is no denial to the fact that defendant had contacted second marriage during the life time of his first wife Jaspal Kaur and was residing separately with the second wife at a different place from the last thirty years. Whereas, both the plaintiffs were residing with their mother Jaspal Kaur at a separate residence. It has also come on record that Jaspal Kaur had executed the Will on 20.2.1997 and had died on 7.3.1998 but Ajaib RSA No. 2287 of 2008 - 3 - Singh defendant did not come to mourn her death. From these facts it is apparent that there was hardly any love and affection between Jaspal Kaur and defendant Ajaib Singh, therefore, in order to be sure that after death her property should go to her children, the Will Ex.P-1 was executed by Jaspal Kaur. Insofar as genuineness of the Will Ex.P1 is concerned, the scribe has left almost uniform space in between the lines and in my opinion two thumb impressions of the testator Jaspal Kaur on the Will does not make it suspicious, as both the testator and scribe were villagers unknown to intricacies of the law. Moreover, the marginal witnesses to the execution of the Will have stated that it was scribe in their presence and after that they had put their signatures. Counsel for the appellant has further contended that suit is not with limitation. However, finding in this regard has been record by the trial Court in favour of the plaintiffs and against the defendant while dealing with issue No.3 which has not been challenged before the First Appellate Court as well as before this Court except for framing question of law. Even before this Court, counsel for the appellant has failed to point out as how the suit was not with limitation. In view of the aforesaid circumstances, I do not find any merit in the present appeal nor any question of law much less substantial is involved therein. Thus, the present appeal is dismissed in liminie. No costs. (RAKESH KUMAR JAIN) 15.10.2008 JUDGE vivek