Regular Second Appeal No.3290 of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 3290 of 2007 Date of Decision: July 06, 2009 Iqbal Singh ...........Appellant Versus Rajinder Singh and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.P.S.Goraya,Advocate for the Appellant. None for the respondents ** Sabina, J. Iqbal Singh-plaintiff filed a suit for declaration to the effect that he was owner in possession of the suit property. The Civil Judge, Junior Division, Gurdaspur decreed the suit of the plaintiff. Aggrieved by the same, defendants No. 1 to 10 and 12 preferred an appeal. The said appeal was allowed by the Additional District Judge (Adhoc)-cum-Presiding Officer, Fast Track Court, Gurdaspur vide judgment and decree dated 13.8.2007. Hence, the present appeal. The case of the parties, as noticed by the learned Additional Distinct Judge in paras 2 and 3 of its judgment reads as under:- “ 2. Land measuring 128 kanals 15marlas is Joint Hindu Family property. Parkash Kaur daughter of Balwant Singh widow of Harnam Singh was owner to the extent of 1/16 share in the entire joint holding. Parkash Kaur died on 2.7.1986 at Amritsar. Parkash Kaur is Regular Second Appeal No.3290 of 2007 2 the real sister of the plaintiff. Defendants no. 1 to 4 are her sons and defendants no. 5 and 6 daughters of Parkash Kaur whereas defendants no. 7 to 9 are children of pre-deceased daughter of Parkash Kaur. Parkash Kaur during her life time executed a will on 18.10.1983 when she was in sound state of disposing mind, in favour of plaintiff. She bequeathed her entire share in the suit property in favour of the plaintiff. The plaintiff became owner of her share and co-owner to the extent of 1/16th share in the entire suit property. The Collector Gurdaspur sanctioned the mutation no.5881 regarding the estate of Parkash Kaur in favour of defendants no. 1 to 9 without taking into consideration the Will. Lateron, the defendants no. 1 to 9 executed a sale deed on 20.7.1999 in favour of defendants no. 10 to 12 taking advantage of the illegal sanctioning of mutation in their favour. The sale deed dated 20.7.1999 is illegal and without any consideration. The defendants no. 1 to 9 were not competent to sell the share of Parkash Kaur. The land measuring 1 kanal 13 marlas comprising in Rect. No.46, killa No. 3/1 was already mortgaged by Harbhajan Singh co-sharer in favour of the plaintiff for a sum of Rs.35,000/- Mortgage deed was also executed in this connection on 31.5.1991. The period of redemption did not expire. The defendants no. 10 to 12 taking advantage of the execution of illegal sale deed dated 20.7.1999 in their favour threatened to dispossess the plaintiff from the suit land illegally Regular Second Appeal No.3290 of 2007 3 and forcibly. When plaintiff requested them to admit his claim over the suit property, they declined to acceed to his request. Hence, the present suit for declaration and grant of injunction was filed. 3.The suit was contested by the defendants, who took up the plea that the plaintiff has no locus-standi to file the present suit. On merits, they submitted that Parkash Kaur deceased never executed any Will in favour of plaintiff. The Will is forged and fabricated document and the plaintiff procured the same fraudulently. The Will is not binding on the defendants. The defendants are legal heirs of Parkash Kaur. So, mutation has rightly been sanctioned in favour of defendants no. 1 to 9. Plaintiff challenged the sanctioning of mutation in the Court of Assistant Collector Ist Grade Gurdaspur. His appeal in this connection was dismissed on 9.3.1999 by the Collector by holding that the Will is forged and illegal document. Defendants no. 1 to 9 had already sold the land measuring 8 kanals 1 marla to defendants to 10 to 12 vide sale deed dated 21.7.1998. Mutation has also been sanctioned in favour of defendants no. 10 to 12." On the pleadings of the parties, the following issues were framed :- “1. Whether the plaintiff is owner in possession of the land measuring 8 kanals 1 marla?OPP 2. Whether the plaintiff is entitled to permanent injuction ?OPP 3. Whether the suit is not maintainable ?OPD 4. Relief.” Regular Second Appeal No.3290 of 2007 4 After hearing the learned counsel for the appellant, I am of the opinion that no ground for interference by this Court is made out. Plaintiff-Iqbal Singh is the brother of deceased Parkash Kaur, who had died on 2.7.1986. The case of the plaintiff is that Parkash Kaur, deceased had executed a Will dated 18.10.1983 in his favour qua the said property. It is a settled proposition of law that the plaintiff has to plead and prove his case and to stand on his own legs and cannot take any benefit of weakness of evidence led by the defendants. Defendants No. 1 to 4 are sons of Parkash Kaur,deceased, whereas, defendants No. 5 and 6 are daughters' of deceased- Parkash Kaur and defendants No. 7 to 9 are children of Tirlochan Kaur, daugher of deceased Parkash Kaur. Since Parkash Kaur was having her own children, it is not understandable as to why she would execute a Will qua her property in favour of his brother by ignoring her sons and daughters. The Will is a sacred document and comes into operation after the death of testator. The Will speaks of the mind of the deceased after his death. In order to prove the due execution of the Will, the propounder of the Will has to examine at least one of the attesting witnesses of the Will. The propounder is also required to dispel any suspicious circumstances surrounding of Will. In the present case, circumstances which make a Will set up by the plaintiff and suspicious documents are that the Will is an unregistered document although the testator of the Will remained alive for three years after the alleged execution of the Will. Although the registration of the Will is not compulsory yet it goes a long way in proving the genuineness of the Will. Another reason which makes the Will suspicious is that as why the executant ignored her own children while executing the Regular Second Appeal No.3290 of 2007 5 Will in favour of her brother. The scribe of the Will has failed to prove on record the entry made by him with regard to the Will in his register. PW2 Subhash Chander had claimed himself to be a regular deed writer. Learned Additional District Judge in para 11 of its judgment has observed as under:- "Following are the reasons, which do not satisfy the conscious of the court that the Will Ex.P1 is a genuine one. (i)Parkash Kaur testator passed away on 2.7.1986, but the Will did not see light of the day till 24.3.1998. This suspicious circumstance remained unexplained on the record. (ii)The will is unregistered one though the testator remined alive for three years after the date of the Will (iii)Sons and daughters were ignored while preferring one brother (iv)None of the attesting witness has been produced. Explanation is that both have expired. Mohinder Singh PW1 claiming to be the son of attesting witness Shiv Singh only identified the signatures of his father and nothing else. (v)Both the attesting witnesses are from the village of the beneficiary and not from the testator (vi)PW2 Subhash Chander, who scribed the Will claims to be deed writer, but did not enter the Will Ex.P1 in his register. When this witness was subjected to cross-examination, he stated that his register for the year 1990-91 has been destroyed. But no report lodged with the police regarding loss or destruction of the register. When this witness was asked as to how many Wills have been scribed by him, this witness feigned Regular Second Appeal No.3290 of 2007 6 ignorance about it. When further asked as to in how many cases he has deposed as a witness, again he feigned ignorance. So testimony of this witness does not appear to be reliable. A person claiming to be deed writer does not appear to be reliable. A person claiming to be deed writer can easily tell approximately as to in how many cases he has appeared as a witness in the court and how many Wills scribed by him (vii)When Iqbal Singh beneficiary of the Will Ex.P1 was subjected to cross-examination, he denied having filed appeal against the order, vide which mutation was sanctioned in favour of the respondents-defendants. There is certified copy of order of the appeal Ex.D4, which the respondent-plaintiff denies to have filed. This shows conduct of the respondent-plaintiff." It has further been observed that it has come in evidence that the deceased was residing with her sons at Amritsar and had died there and her last rites were performed at Amritsar. In these circumstances, the reasons given by the learned Additional District Judge while holding the Will to be suspicious do not call for any interference. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge July 06, 2009 arya Regular Second Appeal No.3290 of 2007 7