RSA No.861 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.861 of 2009 (O&M) Date of Decision: 18.05.2009 Mohinder Singh ..Appellant Vs. Charan Kaur & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.G.S.Jagpal, Advocate, for the appellants. --- Vinod K.Sharma,J. (Oral) CM No.2487-C of 2009 This is an application for condoning the delay of 60 days in- refiling the appeal. For the reasons stated in the application the civil misc is allowed. The delay of 60 days in refiling the appeal is condoned. CM No.2488-C of 2009 This is an application filed under section 5 of the Limitation RSA No.861 of 2009 2 Act for condoning the delay of 35 days in filing the appeal. It has been averred in the application that the judgment and decree was misplaced by the appellant and same could not be located. It was only in the month of July, 2008, that it was located with great difficulty and the appellant immediately approached this court. Thus, it is pleaded that the delay was bona fide and for the reasons beyond the control of the appellant. For the reasons stated in the application the same is allowed and the delay of 35 days in filing the appeal is condoned. CM No.2489-C of 2009 Allowed as prayed for. RSA No.861 of 2009 This regular second appeal is directed against the judgment and decree dated 12.3.2008 passed by the learned courts below vide which suit filed by the plaintiff/appellant claiming to be owner in possession of the land to the extent of share of late Massa Singh son of Lehna Singh, has been ordered to be dismissed. The plaintiff/appellant brought a suit for declaration claiming himself to be the owner in possession of the suit land on the basis of Will dated 8.10.1964 said to have been executed by late Massa Singh in favour of the plaintiff/appellant. Massa Singh was said to have died in the year 1965. It was the case set up by the appellant/plaintiff that the mother of the plaintiff Smt. Aas Kaur widow of Massa Singh died on 8.8.1996 and it was after her death that wooden box was opened from where the Will in RSA No.861 of 2009 3 question was located. The suit qua defendants No.1, 2, 4 and 5 was ordered to be dismissed under Order 9 Rule 2 of the Code of Civil Procedure. The suit was contested by defendant No.8 who appeared and opposed the suit by claiming the Will to be a forged and fabricated document. The appellant/plaintiff in order to prove the Will examined son of scribe and one of the attesting witnesses. It was also claimed that the document being 30 years old was per se admissible in evidence. Learned courts below have recorded a concurrent finding of fact that the Will was surrounded by suspicious circumstances. Major suspicious circumstance pointed out was that the Will was said to have been scribed by a regular deed writer. In spite of this, the Will was written on the page of note book and revenue stamps were affixed thereon. The learned courts below, therefore, held that it could not be expected from a regular deed writer to write a Will on the paper of note book that too with revenue stamp affixed thereon, as the scribe was having experience of over 10 years on the date, when Will was said to have been executed. The learned courts further held that the Will was not produced for a very long period which created suspicion, and explanation given that it was located after mother of the plaintiff died. The mother of the plaintiff had died in the year 1996 whereas the Will saw the light of the day for the first time in the year 1999. Learned counsel appearing on behalf of the appellant contends RSA No.861 of 2009 4 that this appeal raises the following substantial questions of law for consideration by this court: 1. Whether the learned courts below could have rejected the Will which was duly proved by examining one of the attesting witnesses as well as son of the scribe who duly proved the due execution of the Will. 2. Whether the suspicious circumstances relied upon by the learned courts below could be the basis to reject the Will duly proved in accordance with law? Learned counsel appearing on behalf of the appellant in support of the substantial questions of law contends that once the Will being 30 years old was duly proved it was not open to the courts to have rejected the same. It is also the contention of the learned counsel for the appellant that as no form is prescribed for writing a Will mere fact that it was written on the paper of a note book, could not be a ground to reject the Will as done by the learned courts below. The findings of the learned courts below were said to be perverse, in view of contentions raised. On consideration of the matter, I find no force in the contentions raised by the learned counsel for the appellant. Though there is no form prescribed for writing a Will, however, when the Will is written by a regular deed writer, it could not be believed that the same could be written on a paper of note book. It is also not understood how revenue stamps was put on the Will by regular deed writer who had more than 10 years experience at the time of writing the Will. RSA No.861 of 2009 5 This fact coupled with the fact that the Will had not seen the light of the day for almost 30 years from the date of the execution, learned courts below rightly came to the conclusion that the Will was surrounded by suspicious circumstances. The contention of the learned counsel for the appellant that in view of the proof of execution of the Will, it was not open to the court to reject the Will, cannot be accepted in view of the settled law that the propounder of the Will has not only to prove the due execution but has also to remove the suspicious circumstances surrounding the Will. In the case, suspicious circumstances which are patent on the face of the Will, have not been explained. Thus, no ground is made out to interfere with the concurrent finding of fact recorded by the learned courts below. The substantial questions of law claimed are answered against the appellant. No merit. Dismissed. 18.05.2009 (Vinod K.Sharma) rp Judge