RSA No.817 of 1992 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.817 of 1992 Date of Decision: 5.11.2008 Harbans Singh @ Rajbans Singh & Anr. ....Appellants Vs. Bawa Singh & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.G.S.Bhatia, Advocate, for the appellants. Mr.B.R.Mahajan, Advocate, for the respondents. Vinod K.Sharma,J. Respondent Bawa Singh alias Balwinder Singh filed a suit for possession of 1/5th share of land measuring 82 kanals by disputing mutation of estate of Isher Singh in favour of Harbans Singh and Jaswant Singh on the basis of Will executed by late Isher Singh. It was claimed that Harbans Singh was not entitled to the property left by Isher Singh on the ground that he murdered late Isher Singh. The suit was contested. It was claimed that Baba Singh alias Balwinder Singh was not the son of Isher Singh, rather he was the son of Jaswant Singh and Jasmer Kaur. The allegations that the appellant has murdered Isher Singh was denied on the plea that he was falsely implicated RSA No.817 of 1992 2 and was acquitted by this court. Learned courts below decreed the suit and held that respondent Bawa Singh alias Balwinder Singh was the son of late Isher Singh. The court also held that Will dated 17.11.1969 was not proved as it was surrounded by suspicious circumstances. The suit filed by the respondents was decreed. Learned counsel appearing on behalf of the appellants vehemently argued that Gulwant Singh DW 3 the marginal witness of the Will had duly admitted the execution of the Will. Substantial question of law involved in the present case is: “Whether the registered Will dated 17.11.1969 was duly proved by producing the marginal witness and what is the effect thereof?” It is pertinent to mention here that the Will dated 17.11.1969 is a registered Will and the executant late Isher Singh died after 12 years of the execution of the Will. It has also come in evidence that the respondent plaintiff was not residing with late Isher Singh for the last 20 years. DW 4 Gulwant Singh proved the Will as he admitted his signatures as attesting witness. However, in the cross examination he merely stated that he was not present at the time of execution of the Will. This part of the statement of Gulwant Singh could not be accepted. Learned counsel for the appellants contended that it was not necessary for the appellant to prove his presence as no certificate was required on the Will certifying that he attested the document in the presence RSA No.817 of 1992 3 of testator. In support of this contention reliance has been placed on the judgment of Hon'ble Orissa High Court in the case of Bishnupriya Mohapatra Vs. Bata Krushna Mohapatra, 1993 Civil Court Cases 651, wherein Hon'ble Orissa High Court has been pleased to lay down as under:- “ Mr.Mukherjee then contends that the absence of any certificate by the attesting witness that it was executed in their presence in the Will itself makes the will doubtful. But on being asked as to whether this is a requirement of law, Mr. Mukherjee frankly conceded that the law does not require for appending such a certificate in the Will. In the absence of a legal requirement of law to the aforesaid effect, I see no justification in the aforesaid contention that the Will must be looked with suspicion merely because it does not bear a certificate of the attesting witness that it was executed in his presence. That apart, the attesting witness was examined as a witness in this case and he categorically stated about the fact of attestation in presence of the attesting witness has not been shaken in any manner and consequently, the Will cannot be looked with suspicion merely because it does not bear a certificate of the attesting witness to the effect that he attested the document in presence of the testator.” However, the authority relied upon by the learned counsel for the appellants has no relevance to the facts of the present case. There is no dispute that no certificate is required by the attesting witness but the Will has to be proved in terms of section 63 (c) of the Indian Succession Act, RSA No.817 of 1992 4 which reads as under:- “63. Execution of unprivileged Wills.-- Every testator, not being a solider employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall executed his Will according to the following rules:- (a) xx xx xx (b) xx xx xx (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will,, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” In the present case it may be noticed that provisions of section 63 (c) of the Act were complied with as DW 3 Gulwant Singh admitted that the Will was executed by the testator. Hon'ble Supreme Court in the case of Savithri and others Vs. Karthyayani Amma & Ors, 2007 (4) Civil Court Cases 801 has been pleased to lay down as under:- “12. ....... The Will was admittedly registered. The testator lived for seven years after execution of the Will. He could RSA No.817 of 1992 5 change his mind; he did not. The very fact that he did not take any step for cancellation of the will is itself a factor which the Court may take into consideration for the purpose of upholding the same. The question as to whether the Register was brought to the house of the propounder or he had gone to the Registrar's office is not a matter which requires serious consideration. But, we may notice that the witness examined on behalf of the respondents, Reveendran DW 2, categorically stated that he had gone to the Registrar's office to get the same registered. Execution of the Will might have taken place at the house of Krishnan Nair, but according to DW 2, he came to his office even after registration. Even the other Will was also scribed by him and he was an attesting witness therein also.” It may further be mentioned here that in CR No.253 of 1987 titled Harbans Singh @ Rajbans Singh Vs. Jaswant Singh & Ors. decided by this court on November, it has been held that the Will in favour of the appellants stood proved and it was held that they were entitled to succession certificate on the basis of said Will. Thus, the substantial question of law as framed is answered in favour of the appellants and it is held that Isher Singh executed a registered Will in favour of the appellants bequeathing his property in favour of Harbans Singh and Jaswant Singh, resultantly, the plaintiff can have no claim to property left by late Isher Singh. In view of the finding recorded above, this appeal is allowed. The judgment and decree passed by the learned courts below is set aside and RSA No.817 of 1992 6 the suit filed by plaintiff respondent No.1 is ordered to be dismissed with no order as to costs. 5.11.2008 (Vinod K.Sharma) rp Judge