RSA No.3375 of 2006 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 3375 of 2006 Date of Decision:November 10, 2009 Mateshwar Dayal ...........Appellant Versus Parkash Chand and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Rakesh Nehra,Advocate for the Appellant. ** Sabina, J. Plaintiff filed a suit for declaration and possession. The suit of the plaintiff was dismissed by the Additional Civil Judge (Senior Division) Jhajjar vide judgment and decree dated 14.8.2002. Aggrieved by the same, plaintiff preferred an appeal and vide judgment and decree dated 16.12.2005, learned Additional District Judge, Jhajjar dismissed the same. Hence, the present appeal. The case of the parties, as noticed by the learned District Judge in paras 2 and 3 of its judgment reads as under:- 2.The case of the plaintiff before the trial Court, in brief, was that he had filed a suit for declaration and possession alleging himself to be owner of a Nauhra in dispute situate at Mohalla Tella, Jhajjar, which was inherited by him from his grand father Pt. RSA No.3375 of 2006 2 Devi Dayal, through a registered Will dated 9.2.1971. As per plaintiff, he lost the original Will dated 9.2.1971 while going in a bus and,therefore, he produced the certified copy thereof. It was alleged that on 5.11.1995, when the plaintiff was away to Goverdhan in U.P., the defendants had wrongfully and without his consent dispossessed him and entered into the possession of the Nauhra in dispute by dreaking open the lock thereof. He asked the defendants to handover the possession of the Nauhra in dispute but to no avail. Hence, a civil suit No.671 of 1995 was instituted against the defendants on 9.12.1995. 3.On notice, defendants contested the claim of the plaintiff alleging that plaintiff was not owner of the property in dispute. In fact, it is defendants No.1 to 4 who became owner in possession of the disputed property vide sale deed dated 23.1.1976. As per them, in fact, one Braham Parkash son of Devi Dayal resident of Jhajjar was owner in possession of the plot which he had received through a registered Will dated 1.4.1971. Said Braham Parkash sold the plot in dispute to defendants no.1 to 4. 3. It was also averred that since the Will dated 9.1.1971 was cancelled by Pt.Devi Dayal by making another Will dated 1.4.1971. So the former will is not effective and not binding upon the parties. On the pleadings of the parties, the following issues were framed by the trial Court on 10.4.1996:- “1. Whether the plaintiff is owner of disputed plot as alleged? OPP RSA No.3375 of 2006 3 2. Whether he Will dated 9.2.1971 is binding on the rights of the defendants?OPP 3. Relief.” Vide order dated 15.3.2002, the following additional issue was framed:- “Whether the Will dated 1.4.1971 was executed by Devi Dayal in favour of defendants?OPD After hearing the learned counsel for the appellant, I am of the opinion that this appeal is devoid of any merit. A Will is a document that speaks of the mind of the deceased after his death. The executant of the Will is though never available for deposing as to under what circumstances, he has executed the Will. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will. A Will is required to be proved like any other document. Since the Will is required to be attested and as per Section 68 of the Indian Evidence Act, 1872, at least one attesting witness is required to be examined to prove due execution of the Will. The attesting witness is required to establish that the Will in question was executed by the testator in the presence of attesting witness and they had attested the same in the presence of the testator. In a case where the Will is a registered document then the endorsement made by the Sub Registrar that the Will had been thumb marked or signed by the executant in his presence after it was read over to the executant has a presumption of truth. It is also a settled RSA No.3375 of 2006 4 proposition of law that in connection with Wills execution of which is alleged to be surrounded by suspicious circumstances, the test of satisfaction of judicial conscience has been evolved. That test emphasis that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances, the Court has to be fully satisfied that the Will has been validly executed by the testator. Plaintiff filed a suit for declaration and possession that he was owner of the suit land on the basis of Will executed in his favour by his grand father dated 9.2.1971. In order to prove the due execution of the Will, plaintiff examined Registration Clerk, PW1 Jai Parkash and himself appeared in the witness box as PW2. Plaintiff also examined PW3 Lachman Singh, Attesting Witness of the Will. Although the Will Exhibit P1 is a registered document but the propounder of the Will was also required to establish that it was a genuine document. While executing the Will Exhibit P1, the executant had not given any reason as to why he was depriving his son from his property. This is sufficient ground to render the Will a suspicious document. Hence, the Courts below rightly held that the Will Exhibit P1 was not a genuine document. So far as Will Exhibit DW4/A dated 1.4.1971 is concerned petitioner had failed to examine the attesting witness of the Will and hence, the learned trial Court had rightly held that the Will Exhibit DW4/A was not proved in accordance with law to have been duly executed by the executant. Braham Parkash was the son of Devi Dayal and after his death Braham Parkash inherited the property of his father. Braham Parkash executed the sale deed dated 23.1.1976 in favour of the defendants. The defendants, in order to prove the due execution of the RSA No.3375 of 2006 5 sale deed examined the Registration Clerk Vinod Kumar DW1, who brought the original record and proved the due registration of the sale deed Exhibit D1. Defendant- Parkash Chand himself appeared in the witness box as DW2 and has deposed with regard to due execution of the sale deed. The sale deed was executed in the year 1976 ,whereas, the suit was filed by the plaintiff in the year 1995. In these circumstances, the suit of the plaintiff was liable to be dismissed. 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 November 10, 2009 arya