RSA No. 4921 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 4921 of 2010 (O&M) Date of decision: 15.11.2011 Nasib Singh ........ Appellant Versus Chanan Singh and others ........ Respondents CORAM: HON'BLE MR.JUSTICE JORA SINGH Present: Mr. Surinder Sharma, Advocate for the appellant. JORA SINGH, J. CM No. 14577-C of 2010 This an application under Section 151 CPC for condonation of delay of 65 days in re-filing of appeal on the allegation that appeal was filed on 7.12.2009 but due to some objection Registry returned the same on 20.1.2010. After removing the objections, appeal was re-filed on 17.2.2010 but again on 19.4.2010, registry returned the appeal with some new objections and appeal was again re-filed on 7.5.2010, in this way delay of 65 days has occurred in re-filing the present appeal. In view of the averments made in the application, I am of the opinion that delay is neither intentional nor deliberate. The instant application is allowed and delay of 65 days in re-filing the present RSA No. 4921 of 2010 (O&M) -2- appeal is condoned. CM stands disposed of. RSA No. 4921 of 2010 Nasib Singh-preferred this Regular Second Appeal to challenge the concurrent findings of both the Courts' below. Main suit for declaration was filed by the appellant-plaintiff to the effect that he is owner to the extent of 1/7th share and in joint possession with respondents-defendants No. 1 to 9 over the land situated in village Pandori Nijjran Tehsil and District Jalandhar bearing hadbast No. 38 Jalandhar-II. Earlier the land was owned by his father Darshan Singh and mutation No. 5472 sanctioned in favour of respondents-defendants No. 10 and 11 is null and void and respondents-defendants No. 1 and 2 be restrained from alienating or creating charge over the property in dispute. Darshan Singh father of the appellant-plaintiff, was the owner of the property in dispute and the property was joint Hindu family coparcenary ancestral property in the hands of Darshan Singh. Darshan Singh died on 11.8.1996. Darshan Singh died in testate but respondents No. 10 and 11 claimed themselves to be the owner of the property in dispute on the basis of Will dated 7.8.1996. Respondents- defendants No. 1 to 8, 10 and 11 filed separate written statements and contested the suit inter alia on the ground that property in dispute was not of joint Hindu family Coparcenary ancestral property in the hands of Darshan Singh. Property was self-acquired property of Darshan Sngh and Darshan Singh had executed a valid Will dated 7.8.1996 in favour of respondents-defendants No. 10 and 11. RSA No. 4921 of 2010 (O&M) -3- Finding of the trial Court was challenged before the learned Ist Appellate Court but Ist Appellate Court also observed that Will in question is genuine one. Main grievance of the appellant is that he is residing in foreign country. Will in question is dated 7.8.1996, registered on 9.8.1996 whereas Darshan Singh died on 11.8.1996. Evidence on file was not rightly appreciated by both the Courts' below but after going through the file, I am of the opinion that evidence on file was rightly scrutinized by both the Courts' below. Appellant is residing in foreign country. Registered Will was executed in the presence of respondent No. 2-Shaukin Singh and Nachhattar Kaur. Nachhattar Kaur is the real aunt of the appellant whereas respondent No.2-Shaukin Singh is the son of Darshan Singh. Marginal witnesses of the Will are related to the appellant. There was no enmity amongst the marginal witnesses and the appellant. Testimonies of the marginal witnesses were rightly accepted by both the Courts' below. Original Will was produced before the Revenue Authority at the time of sanctioning of mutation. Records of both the Courts' below were summoned. Certified copy of the Will is on the file. Will was thumb marked by the testator but no effort was made by the appellant to examine the expert to compare the disputed thumb impressions on the Will in question with the standard thumb impressions. Will is always executed to change the line of succession i.e. to ignore some of the legal heirs. In case, legal heirs are not to be ignored to inherit the estate then there is no need to execute Will. Appellant was ignored because he is residing in USA and no case of RSA No. 4921 of 2010 (O&M) -4- the appellant that he was serving Darshan Singh. Evidence on file rather shows that Darshan Singh was residing with his grand-son Kashmir Singh-respondent No. 10. Other legal heirs who were ignored instead of challenging the Will admitted that Will was rightly executed by Darshan Singh in favour of his grand son. When concurrent findings of both the Courts' below that Will in question was rightly executed and is a valid document then no scope for interference. High Court can interfere only, if, Court is of the view that evidence on file was misread and judgments of both the Courts' below are perverse. Appellant is the son of Darshan Singh testator but mere relation of the appellant with the testator is no ground to hold that Will in question is not genuine document. Will in question is registered one. With the death of Darshan Singh on 11.8.1996, Will in question is not to be ignored. Marginal witnesses of the Will are related to the beneficiaries as well as the appellant. They have no enmity with the appellant. Statements of the marginal witnesses were rightly accepted by both the Courts below. In view of all discussed above, I am of the opinion that evidence on file was rightly appreciated by both the Courts' below. Nothing that evidence on file was misread. No substantial question of law is involved. In view of the findings of the Courts' below that the Will in question is genuine document, no ground for interference. For the reasons recorded above, instant appeal is dismissed. November 15, 2011 ( JORA SINGH ) rishu JUDGE