R.S.A.No. 1956 of 2007(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1956 of 2007(O&M) Date of decision: 18.5.2011 Amrik Singh Dhillon and another ......Appellants Versus Harbans Kaur and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Suvneet Sharma, Advocate for the appellants. Mr.Arun Palli,Sr. Advocate with Mr. Kanwal Goyal, Advocate, for the respondent No.2. **** SABINA, J. The plaintiffs had filed a suit for declaration that the plaintiffs and defendant No.1 were owner in joint possession of the suit property to the extent of 1/3rd share each and the Will dated 10.9.1987 was a forged and fictitious document. The case of the plaintiffs, in brief, was that the parties were heirs of deceased Nazar Singh. The plaintiffs and Nazar Singh were members of joint Hindu family. Nazar Singh had died on 20.12.1987. The agricultural land in village Thatti Khera was R.S.A.No. 1956 of 2007(O&M) 2 inherited by Nazar Singh from his forefathers and hence, the plaintiffs had interest in the suit property by birth. Plot No.29 Sector 2-A Chandigarh was purchased by Nazar Singh from B.D.Singh Pannu and a conveyance deed was executed in favour of Nazar Singh on 16.6.1962. Nazar Singh constructed the house in the year 1961-62. Sale consideration as well as the construction cost had been borne out of the funds of joint Hindu family property. The house mentioned in heading B of the plaint also formed joint Hindu family property. The Will set up by defendant No.1 was a forged and fictitious document as Nazar Singh was suffering from mental ailment and had been under treatment from PGI right from the year 1978. Defendants, in their written statement, admitted the relationship between the parties. However, the contents of the plaint were denied. It was averred that the house in dispute was self acquired property of deceased Nazar Singh. Nazar Singh had executed the Will in favour of defendant No.1 qua the house in Chandigarh and qua the remaining property, the Will had been executed by Nazar Singh in favour of his sons. It was denied that Nazar Singh was suffering from any insanity. On the pleadings of the parties, issues were framed by the trial Court on 14.8.2000 but were, thereafter, corrected/ reframed on 19.5.2001 and the same are as under:- “1. Whether the plaintiffs are entitled to the declaration as prayed for ? OPP. 2. Whether the plaintiffs are entitled to the permanent injunction as prayed for ? OPP 3. Whether the Will dated 10.9.1987 executed by Nazar R.S.A.No. 1956 of 2007(O&M) 3 Singh in favour of defendant No.1 is a forged and fictious one as alleged? OPP 4.Whether the plaintiff is entitled to the decree of joint possession in the alternative as alleged ? OPP 5. Whether the suit is not maintainable? OPD 6. Whether the suit is time barred ? OPD 7. Relief.” The trial Court, vide judgment and decree dated 17.2.2006, partly decreed the suit of the plaintiffs and declared them owners to the extent of 1/5th share each out of the house situated in Chandigarh and 1/4th share each in the agricultural land measuring 66 kanals 10 marlas. Aggrieved by the said judgment and decree, defendants No.1 and 2 preferred an appeal and the same was allowed vide judgment and decree dated 30.3.2007 passed by the Additional District Judge. Consequently, the suit of the plaintiffs was dismissed. Hence, the present appeal by the plaintiffs. Learned counsel for the appellants has submitted that the Will in question was a forged and fabricated document. The executant was not of sound disposing mind and was getting treatment from PGI qua his mental ailment. The Will in question was a result of fraud and forgery. Learned senior counsel for the respondents, on the other hand, has submitted that the Will in question had been duly proved on record. Moreover, as per the Will, the ancestral property had been bequeathed by the executant in favour of his sons. The house in Chandigarh had been bequeathed in favour of defendant No.1. The question that requires consideration in the present R.S.A.No. 1956 of 2007(O&M) 4 case is as to whether the Will in question is a genuine document. Will is a sacred document and speaks of the mind of the executant after his death. In order to prove the due execution of the Will, the propounder of the Will is required to examine at least one of the attesting witnesses to the Will in compliance of Section 68 of the Indian Evidence Act, 1872. The propounder of the Will is further required to dispel any suspicious circumstances surrounding the Will. Although registration of Will is not compulsory but it goes a long way in proving the genuineness of the Will. A perusal of Will Ex.P-14 reveals that it was executed by Nazar Singh on 10.9.1987 and was attested by Surinder, Karnail and G.S.Gill. The Will was got registered on 10.9.1987. A perusal of the endorsement made by the Sub Registrar reveals that the contents of the Will had been read over and explained to the executant and he had admitted the same to be true and correct. Both the witnesses to the Will had affixed their signatures at the time of registration of the Will. A presumption of truth is attached to the endorsement made by the Sub Registrar. There is nothing on record to suggest that the endorsement by the Sub Registrar had not been correctly made. DW-1 Gurdip Singh Gill deposed that Nazar Singh was friend of his father. The Will in question was dictated by Nazar Singh and thereafter, he had read the Will and had signed it. He along with the counsel had attested the Will. Thereafter, the Will was presented for registration and it was got registered. They had appeared before the Sub Registrar and Nazar Singh had admitted the contents of the Will and had signed in his presence before the Sub Registrar. They R.S.A.No. 1956 of 2007(O&M) 5 had also signed the same in the presence of the Sub Registrar. As per the Will, the executant had bequeathed his movable and immovable property in favour of his wife Harbans Kaur and so far as the ancestral agricultural land situated in Village Thatti Khera is concerned, the same was bequeathed in favour Amrik Singh Dhillon and Sarabjit Singh in equal shares. It was further mentioned in the Will that Harbans Kaur shall become absolute owner of the property left by him at the time of his death except agricultural land. The executant has also mentioned in the Will that his sons were settled in America and he had spent sufficient amount on their education and development. His two daughters were married and he had already spent sufficient amount on their education and marriages. Gurmeet Kaur was a divorcee but she was looking after herself. None of his children were dependent on him. Thus, the testator was quite alive to the condition of his children and wife and had executed the Will qua ancestral land in favour of his sons and qua the remaining property, he had executed the Will in favour of his wife. The executant was residing with his wife while his sons were residing abroad. There is nothing unnatural in the Will which would render it a suspicious document. The defendants, in order to prove the execution of the Will, have examined one of the attesting witnesses of the Will, who has deposed qua due execution of the Will. Merely because the second witness could not be examined or located does not lead to the inference that the Will is a fictitious document. The Will was duly registered by the Sub Registrar in the presence of both the witnesses. Hence, on this ground that the other witness could not be R.S.A.No. 1956 of 2007(O&M) 6 located, the Will cannot be said to be a suspicious document. Plaintiff Amrik Singh Dhillon, while appearing in the witness box as PW-1, deposed that his father was not in sound state of mind at the time of execution of the Will and his father was regular patient of PGI on account of his nervous breakdown. The said witness had gone to America in the year 1975 and his brother, plaintiff No.2, was in America since the year 1974. Defendant No.1 had been informing the plaintiffs qua the health of the deceased. PW-4 Sarabjit Singh deposed that he had left for America in the year 1974. He had come to India in the year 1978 as his father was under mental depression and was getting treatment from PGI. PW-3, T.S.Virdhi, has deposed that Nazar Singh was a victim of injustice from society particularly his employer, tenants etc. and remained under great mental tension. Nazar Singh had told him before his death that he was not feeling well. In his cross- examination, the said witness deposed that Nazar Singh was a great scholar and was writing one book. When he had last met Nazar Singh, he had discussed politics with him. Nazar Singh was a great critic as well as an analyst. Thus, from the statement of this witness, it cannot be said that Nazar Singh was of unsound mind. He is the witness who had been meeting Nazar Singh of and on till his death. Thus, from the evidence led by the plaintiffs, it cannot be said that Nazar Singh was of unsound mind. Rather PW-3 has deposed in his cross-examination that Nazar Singh was a great scholar and was writing a book. Assuming that Nazar Singh was suffering from some depression but the same does not lead to the inference that he was of unsound mind. The plaintiffs are residing in R.S.A.No. 1956 of 2007(O&M) 7 America and deceased Nazar Singh was residing with his wife Harbans Kaur in India. Plaintiffs did not settle back in India to look after their father nor took him along with them to America. In these circumstances, it was natural for Nazar Singh to have left his property in the name of his wife so that she could look after herself during her old age. Nazar Singh had executed the Will qua ancestral property in favour of his sons. Learned first Appellate court, thus, rightly held that the Will in question was a genuine document. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE May 18, 2011 anita