RSA No. 903 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 903 of 2010(O&M) Date of Decision: February 26 , 2010 Man Singh ...... Appellant Versus Champa Devi and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.R.D.Bawa, Advocate for the appellant. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against the judgment of the Learned Lower Appellate Court reversing that of the trial Court and thereby dismissing the suit of the appellant that he had inherited the property of his uncle Shadi Ram by virtue of the subsequent Will. It is not disputed that earlier Shadi Ram had executed a Will in favour of respondent Champa Devi, his wife and by the later Will the said Will had been cancelled. The learned trial court holding that the Will in question was a registered Will and that it had been proved by the testimony of one attesting witness as well as the scribe, decreed the suit. The learned Lower Appellate Court, however, took notice of the cross-examination of the scribe wherein he had mentioned that at the time when the Will was RSA No. 903 of 2010(O&M) 2 dictated the testator was not present and he had dictated the Will as per the wishes of the appellant and that the testator had only come after about half an hour to sign the Will. The learned Lower Appellate Court also suspected the Will on account of the fact that the wife had been disinherited. As regards the scribe learned counsel for the petitioner has argued that this is an obvious case where the scribe was won over by the other side because in his testimony in chief he had mentioned that the Will had been dictated on the directions of the testator and had taken an abrupt U-turn in the cross-examination. In my opinion the learned Lower Appellate court has rightly held that if there is discrepancy between the testimony given by a witness in his examination-in-chief and that given by him in cross-examination, normally the testimony given in cross-examination is to be believed unless the said witness is declared hostile and cross-examined by the person who had summoned him. In this case nothing of the sort was done. As regards the second point, learned counsel has argued that in the Will the testator had clearly mentioned that if he predeceased his wife, his nephew(the appellant) would be responsible for looking after his wife. Learned counsel has submitted that this clearly shows that the wife was not disinherited. In my opinion this declaration which, in a worst case scenario, could only lead to litigation between the old woman and the appellant, can in no manner be held to be adequate provision for the wife. The following questions have been proposed:- i) Whether the impugned judgment and decree of learned First Appellate Court is perverse and is based on misreading of evidence while saying that no provision has been made by RSA No. 903 of 2010(O&M) 3 the testator in his Will for his wife while bequeathing the property in favour of nephew whereas a clear provision has been made in the Will Ex.P-1 to the effect that if the testator dies during the life time of his wife his nephew Man Singh, the beneficiary of the Will, shall bear all the expenses of testator's wife and, therefore, a charge has been created on the property of the testator in the hands of the beneficiary for the maintenance of the wife of the testator? ii)Whether the Will, the execution of which is duly proved by the attesting witness of the Will and thumb impressions of the testator available on the Will Ex.P-1 are not disputed by the defendant-respondent. The Will cannot be ignored by entertaining unnecessary suspicious on the basis of mere conjectures and surmises especially when the Will is quite natural in its construction in which while bequeathing the property in favour of nephew for the services rendered by him and in the absence of any male heir, the testator has taken full care of his wife by creating a charge on the property for the maintenance of his wife. iii)Whether in view of the fact that no evidence has been led by the defendant-respondents to prove that the testator was not of sound and disposing mind while executing the Will Ex.P- 1, no esperoione can be entertained against the validity of the Will? iv)Whether the impugned judgment and decree of the learned First Appellate court is also perverse while reversing the well reasoned judgment of the learned trial court on the question of possession also ignoring the fact that the revenue entries on record show that the plaintiff-appellant is in possession over the land in question? It would be seen that all the questions are pure questions of RSA No. 903 of 2010(O&M) 4 fact. In my opinion in view of the above discussion it cannot be held that the findings arrived at by the learned Lower Appellate Court are either based on no evidence or on such perverse misreading of the evidence so as to be liable for interference under Section 100CPC. Consequently holding all the questions proposed against the appellant, this appeal as well as the application for stay are dismissed. No costs. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE February 26 , 2010 sunita