R.S.A. No. 3089 of 2010 (O&M) [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 3089 of 2010 (O&M) Date of Decision: October 4,2011 Baljit Kaur and others ................................ Appellants versus Hardeep Kaur and others ........................... Respondents Coram: Hon'ble Ms. Justice Ritu Bahri Present: Mr. R.K.Arya, Advocate for the appellants. ... RITU BAHRI, J. C.M. No. 9131-C of 2010 There is a delay of 132 days in re-filing the present appeal. For the reasons mentioned in the application, the delay of 132 days in re-filing the present appeal is condoned. R.S.A. No. 3089 of 2010 This is a Regular Second Appeal against the judgment dated 1.5.2009 passed by the Additional District Judge(Adhoc), Fast Track Court, Gurdaspur. R.S.A. No. 3089 of 2010 (O&M) [ 2 ] The plaintiffs case is that land measuring 61 kanals bearing Khasra Nos. 214, 215, 216, 217 min, 222 min, 223, 224, 225 situated in village Khojepur, Tehsil Gurdaspur, was jointly owned by Sadhu Singh to the extent of 1/5th share and Kashmira Singh and Dalbir Singh to the extent of 4/5th share. Sadhu Singh was allotted land measuring 12 kanals. After his death the plaintiffs, being his legal heirs, became co-owners in possession of the suit land to the extent of 4/5th share and the defendant has 1/5th share in it. The defendants refused to admit the claim of the plaintiffs which resulted in registration of the suit for declaration that plaintiffs were co-owners in possession to the extent of 4/5th share in the land. In the written statement, the defendants took up a preliminary objection that the suit was not maintainable as the plaintiffs were neither owners nor in possession of the suit land. The suit was barred by limitation and was bad for non-joinder and misjoinder of necessary parties. Sadhu Singh had executed a registered Will dated 3.10.1985 in favour of defendant and Ved Kaur. By this Will he had ignored the sons and daughters from inheritance. Ved Kaur, mother of the defendant, died on 26.6.1994 after executing a Will dated 7.4.1994 in favour of the defendant. Mutation in the name of the defendant was sanctioned on 7.3.1996 by the A.C. IInd Grade. The suit land was given on lease to the plaintiff-Kashmira Singh on 21.4.1994. After R.S.A. No. 3089 of 2010 (O&M) [ 3 ] expiry of the lease Kashmira Singh handed over the possession of the suit land to the defendant. This land was subsequently given on lease to Sukhraj Singh by the defendant at the rate of `7,000/- per year. The defendant was the unmarried sister of Kashmira Singh and was exclusive owner of the suit land. The trial Court framed the issues that (i) Whether the plaintiffs are co-owners in possession of 4/5 share of the suit property? (ii) whether Sadhu Singh has executed a registered Will dated 23.6.1989 in favour of the defendants? and (iii) Whether Ved Kaur had executed a Will dated 7.4.1994 in favour of the defendant? The trial Court recorded a finding that ownership of the property in dispute was of Sadhu Singh. Sadhu Singh had two sons and three daughters namely Charanjit Kaur, Swaranjit Kaur and Hardip Kaur. Ved Kaur was the mother of the defendant. The Will dated 3.10.1985 executed by Sadhu Singh was not proved before the trial Court. Balbir Singh had executed a Will but was not examined to prove the same. DW5 Sardar Masih failed to prove the execution of the Will in examination-in-chief. He stated that the contents of the Will were not read over to the executant in his presence. When the Will was executed he was not present at the spot. Sadhu Singh had not put his signatures in his presence on the Will. Another witness to the Will Balbir Singh did not append his signatures in the presence of DW5 Sardar Masih. R.S.A. No. 3089 of 2010 (O&M) [ 4 ] The testimony of DW4 Ram Kumar, an official of the Sub Registrar, Gurdaspur, goes to show that neither the Will was executed in his presence nor the executant had appended the signatures on the Will (Ex.D2). As per Section 68 of the Indian Evidence Act it was mandatory to examine atleast one attesting witness of the Will. Balbir Singh was not examined to prove the due execution of the Will dated 3.10.1985. The testimony of DW2 Gurdial Singh who was the scribe of the Will is not sufficient to prove due execution of the Will. The trial Court has held that the Will dated 3.10.1985 was not proved in accordance with the provisions of Section 68 of the Indian Evidence Act. The Will dated 23.6.1989 was not produced on the record. As per this Will the execution of Will dated 3.10.1985 was confirmed in the absence of the Will dated 23.6.1989. This fact has been affirmed by the lower Appellate Court. The trial Court has held that this Will was not executed by Sadhu Singh. Hence, the share of Sadhu Singh had to be shared between all sons, daughters and widow equally. All the legal heirs were entitled to 1/6th share of the property. Ved Kaur had executed a valid Will dated 7.4.1994 in favour of Hardip Kaur. This Will was found genuine. The genuineness of the Will has been accepted by the trial Court. Kashmira Singh, plaintiff No.1, has been held to be entitled to 1/6th share. Plaintiffs No. 2 to 5 are entitled to 1/6th share being sons, R.S.A. No. 3089 of 2010 (O&M) [ 5 ] daughters and widow of Dalbir Singh son of Sadhu Singh. Plaintiffs No. 6 to 9 are entitled to 1/6th share on behalf of Charanjit Kaur daughter of Sadhu Singh. Plaintiff No.10 is entitled to 1/6th share being daughter of Sadhu Singh. Hardip Kaur is entitled to 1/6th share being daughter of Sadhu Singh and 1/6th share on behalf of her mother Ved Kaur. This finding has been affirmed by the lower Appellate Court by passing the judgment and order dated 1.5.2009. After going through the judgments of both the Courts, the finding recorded that the Will dated 3.10.1985 was not duly proved as per Section 68 of the Indian Evidence Act does not require further interference. The suit of the plaintiff has been partly allowed as he has been held entitled to 1/6th share as per natural succession. No substantial question of law arises for adjudication in the present appeal. Dismissed. ( RITU BAHRI ) 4.10.2011 JUDGE rupi