R.S.A.No. 886 of 1985 (O&M) 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No. 886 of 1985 (O&M) Date of Decision: December ,2011 Gurditta Mal (Dead) through L.Rs. and others ....Appellants Versus Veer Bhan and another .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. Arihant Jain, Advocate, for the appellants. Mr. Bhup Singh,Advocate, for respondent No.1. VIJENDER SINGH MALIK, J. The defendants, Gurditta Mal and others are in appeal before me against the judgment and decree dated 13.10.1984 passed by learned Additional District Judge (II), Jind vide which the appeal preferred by Veer Bhan, the plaintiff against the judgment and decree dated 24.10.1983 passed by learned Sub Judge Ist Class, Safidon has been accepted and the suit of the plaintiff Veer Bhan for declaration that he is owner in possession of agricultural land measuring 43 kanals and for permanent injunction restraining the defendants from interfering into the possession over the same and alienating the same, had been decreed while the appeal filed by Gurditta Mal and others is also partly accepted and the finding of learned trial court on issue No. 4 was modified to the extent that the plaintiff has been in possession of the suit R.S.A.No. 886 of 1985 (O&M) 2 .. land but not as tenant. Veer Bhan had set up claim to ownership and possession over the suit land on the basis of Will dated 5.6.1977 executed in his favour by Gahna Ram, his grand father. He had claimed that Gahna Ram had executed the Will in question out of his free Will and he was possessing a sound disposing mind at that time. Gahna Ram is claimed to have died on 28.12.1978. He has also claimed that in the lift time of Gahna Ram, he used to cultivate the suit land as gair maurusi . The defendants were claimed to be threatening the plaintiff of dispossession from the suit property as also to alienate the same and, therefore, he sought the relief of declaration that he is owner in possession of the suit land and for permanent injunction restraining the defendants from dispossessing him from the same or alienating the same in any manner. The defendants, who are none except the four sons and three daughters of deceased Gahna Ram, barring Chaman Lal, defendant No. 4 have resisted the suit. Chaman Lal happens to be the father of the plaintiff, who had been proceeded against ex-parte. The contesting defendants denied Gahna Ram to have executed any Will in his life time and the Will, if any, was claimed to be based on mis-representation, fraud and collusion. It is claimed that deceased Gahna Ram was not having sound disposing mind and that he had died at the age of 90 years and he never came to Safidon to execute the Will. It is claimed that Gahna Ram and defendants used to cultivate the suit land jointly and Gahna Ram was karta of Joint Hindu Family. Locus-standi of the plaintiff to file the suit was also questioned and it was pleaded that suit is not properly valued for the purposes of court fee and jurisdiction. R.S.A.No. 886 of 1985 (O&M) 3 .. On the pleadings of the parties, learned trial court settled the following issues :- 1. Whether Gahna Ram executed a Will on 5.6.77 in favour of the plaintiff bequeathing his suit property upon the plaintiff? OPP 2. If issue No.1 is proved whether the said will was not a validly executed Will because of mis-representation of fraud or other such circumstance? 3. Whether Gahna Ram deceased held the suit property in his life time as Karta of the Joint Hindu Family property and if so whether he could not execute a Will to the detriment of the defendants? OPD 4. If the plaintiff is found to have not become the owner of the suit land then whether he is a tenant Gair Marusi upon the same? OPP 5. Whether the plaintiff has no locus standi to file this suit? OPD 6. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD 7. Whether the defendants have become the owner of the suit land by way of succession and inheritance? OPD 8. Relief. Parties led their respective evidence. Hearing learned counsel for the parties, learned trial court decided the suit vide judgment and decree dated 24.10.1983, whereby he found the plaintiff to have failed to prove that Gahna Ram had executed a valid Will in his favour in respect of the suit land. It was, however, held that the plaintiff has been in possession of the suit land as tenant and, therefore, his suit for permanent injunction restraining the defendants from interfering in his R.S.A.No. 886 of 1985 (O&M) 4 .. possession over the suit land, except in due course of law, had been decreed while the relief of declaration was declined. For the aforesaid reasons, both the plaintiff and contesting defendants filed the appeals, which have been decided vide judgment and decree dated 13.10.1984 in the above stated terms. Feeling aggrieved by the judgment of learned first appellate court, the contesting defendants have filed this appeal. I have heard Mr. Arihant Jain, learned counsel for the appellants and Mr. Bhup Singh, learned counsel for respondent No.1. I have gone through the record. Following questions have been placed on the record by the appellants in the name of 'substantial questions of law' involved in this appeal :- a). Whether the Plaintiff/Respondent/Veer Bhan has duly proved the execution and genuineness of the unregistered WILL dated 5.6.1977 allegedly executed by Gahna Ram in favour of his grand son Veer Bhan ignoring his other 4 sons and 3 daughters? b). Whether the WILL dated 5.6.1977 is surrounded by suspicious circumstances? c). Whether the lower appellate court was justified in reversing the legal and well reasoned findings of Trial Court on issues No. 1, 2 and 4 without any justifiable and cogent reason? d). Whether the findings and observations of the lower appellate court while deciding the issues No.1, 2 and 4 are perverse and sustainable in the eyes of law? e). Whether Gahna Ram aged about 90 years was of sound mind while disposing of his Property at the R.S.A.No. 886 of 1985 (O&M) 5 .. time of execution of the alleged WILL dated 5.6.1977 as required under section 59 of the Indian Succession Act, 1925? f). Whether the alleged WILL dated 5.6.1977 has been executed as required under section 63 of the Indian Succession Act, 1925? g). Any other substantial question of law with the leave of this Hon`ble Court? Learned counsel for the appellants has submitted that Gahna Ram ignored all his sons and daughters and executed a Will in favour of Veer Bhan, his grand son. According to him, the Will dated 5.6.1977 claimed to be executed by Gahna Ram in favour of Veer Bhan is an unregistered Will. According to him, Gahna Ram died on 28.12.1978. Referring me to paragraphs No. 8 and 13 of the judgment of the trial court, learned counsel for the appellant has submitted that the deprivation of sons from inheritance by Gahna Ram is unnatural. According to him, attestation of Will by Chincha Nambardar (DW-2) is, moreover, not proved. Learned counsel for the appellants has further submitted that though Gahna Ram claimed to have given some land to two of his sons, but he did not give any land to other two sons. He has submitted that deprivation of the sons in favour of a grand son creates doubt about the execution of the Will by Gahna Ram. He has further submitted that the plaintiff, Veer Bhan is also proved in the statement of Shiv Dayal to have taken active part in execution of the Will. He has further referred me to the statement of Chincha Ram (DW-2) who denied execution of the Will by deceased Gahana Ram in his presence and asserted in his R.S.A.No. 886 of 1985 (O&M) 6 .. examination-in-chief that his thumb impression on the Will was obtained after the death of Gahna Ram. Learned counsel for the appellants has further submitted that difference in spacing of lines of the Will (Ex. P1) on page No.2 also shows that the document has been created on a paper, which already had thumb impression of the deceased and it also creates doubt about the genuineness of the Will. Learned counsel for respondent No.1 has submitted, on the other hand, that the findings of fact recorded by learned first appellate court cannot be disturbed by this court, even if this court comes to a different conclusion on the evidence coming on the file. According to him, all his sons namely, Pahalwan Dass, Gurditta Mal, Harbans Lal and Chaman Lal were well settled. According to him, while Pahalwan and Harbans Lal were living away from the deceased, Chaman Lal and Gurditta Mal had been given land measuring 16-1/2 acres by the deceased. He has submitted that the deprivation of the sons and daughters by the testator in the Will is not without reason. According to him, he had given reasons for the same and the same appear to be valid reasons. Coming to the aspect of participation of Veer Bhan, the propounder of the Will, in the execution of the Will by Gahna Ram, learned counsel for respondent No.1 has submitted that there is solitary statement of Shiv Dayal before the Assistant Collector Ist Grade about the attestation of the mutation, a copy of which is Ex. D2, in which he has stated so. According to him, even if the same is believed, it does not amount to taking active part in execution of the Will and the same does R.S.A.No. 886 of 1985 (O&M) 7 .. not show any suspicious circumstance surrounding the execution of the Will. He has further submitted that difference in spacing at page No. 2 of the Will would also not raise suspicion about the genuineness of the Will because the Will does not end at page No. 2 but goes further to page No. 3 and the difference in spacing can only be said to be due to writing habit of the scribe. He has submitted that Shiv Kumar (PW-3), after scribing this Will, had entered the same in his register which he had brought on the date he appeared in the witness box. He has submitted that for these valid reasons, learned first appellate court found no suspicious circumstance surrounding the execution of Will by Gahna Ram in favour of Veer Bhan. According to him, non registration of the Will would not be a reason to doubt the genuineness of the Will as the last Will of Gahna Ram. Ex. P1 is the copy of the Will, the original of which was in the record of Commissioner in the mutation matter. The testator, Gahna Ram had specifically mentioned about his sons and daughters. He had mentioned that his daughters had been married in well-to-do families and that he had given enough in the shape of gold, clothing, furniture etc. at the time of their marriage and that they were well settled at their matrimonial homes. He had further stated that his four sons were busy with their work and they owned properties. He had further mentioned that he had been left with no connection with his sons for the last many years. He had also mentioned that in his old age, he was being served by his grand son, Veer Bhan son of Chaman Lal and that he was happy with his services. According to the testator, the property in question in his hand was self acquired property and that he desired not to give any R.S.A.No. 886 of 1985 (O&M) 8 .. share in the same to his sons but to give the entire property to his grand son Veer Bhan in lieu of his services. Chincha Ram, one of the attesting witnesses of the Will has appeared as DW-2 and has denied having seen the execution of the Will by deceased Gahna Ram. It is true that the Will was not executed by Gahna Ram in the presence of Chincha Ram. He was not present at the time of execution of the Will and that Gahna Ram was directed to acknowledge execution of the Will by him before Chincha Ram before obtaining his thumb impression on the same. The statement of Chincha Ram no where makes the execution of the Will by Gahna Ram in presence of Hans Raj, Shiv Dayal and Barkat Ram doubtful. Even if the Will did not have attestation of Chincha Ram, Lambardar, it would not have taken away anything from the validity of the Will. Chincha Ram has stated that he came to Safidon with Gahna Ram for execution of Will in favour of Veer Bhan and on that day, the Will could not be executed and they went back to the village. This statement of Chincha Ram clearly shows that Gahna Ram intended to execute a Will in favour of Veer Bhan, his grand son. Chincha Ram has stated that his thumb impression was obtained on some compromise, the details of which were not disclosed to him. He has stated that his thumb impression was obtained after the death of Gahna Ram. This statement of Chincha Ram is about some compromise and it cannot be taken to hold that his thumb impression on the Will was obtained after the death of Gahna Ram. Therefore, statement of Chincha Ram no where helps the defendants to demolish the case of the plaintiff with regard to the Will in question. A Will is executed by a person only in case, he wants deviation R.S.A.No. 886 of 1985 (O&M) 9 .. from the course of succession for his property. If a person wants his property to go to his legal heirs, there is no need for his executing a Will. The deprivation of the natural heirs by way of Will executed in favour of a distant relation may be taken as suspicious circumstance as is held by Hon`ble Supreme Court in Bharpur Singh & Ors. Vs. Shamsher Singh 2009(1) RCR (Civil) 826. In the said judgment, though not exhaustive, the circumstances which could be held to be suspicious have been laid down. It is laid down in the same that disposition would be unnatural, improbable or unfair in the light of the circumstances of exclusion of natural heirs if no reason is given for exclusion of the natural heirs. In this case, reasons and that too, adequate reasons have been given to exclude the sons and daughters in favour of grand son and not a distant relation. The participation of Veer Bhan in execution of the Will is to the extent that he was present at the time of execution thereof and he paid the fees of the scribe. This is not such a participation which would cast suspicion on the voluntary character of the document. If, as is stated in Will Ex. P1 and is there in the evidence, Gahna Ram, testator was living with Veer Bhan and he was serving him, he could ask Veer Bhan to take him to Safidon for the purpose and the fees payable by his grand father could be paid by him. This much participation is not a participation of that nature, which would prove that the document was not a voluntary disposition of the deceased. The Will being an unregistered document is no suspicious circumstance in itself. Even registration of the Will is no guarantee of its validity. Spacing of lines has been different at page No. 2 of the R.S.A.No. 886 of 1985 (O&M) 10 .. document and as the Will has ended at page 3, it does not appear that the document has been written on papers already bearing the thumb impression of the deceased. Moreover, there is evidence on the record to prove that the Will was executed by Gahna Ram. There is no reason with Shiv Kumar, scribe (PW-3), Hans Raj (PW-5) and Shiv Dayal (PW- 6), the attesting witnesses of the Will to falsely claim that the Will was executed by Gahna Ram in their presence. So, therefore, it is not a Will scribed on papers, on which there were thumb impressions of Gahna Ram. In the light of the above going discussion, questions framed by the appellants in the name of 'substantial questions of law' would clearly show that they are not even questions of law, leave alone substantial questions of law. They are only questions of facts. Therefore, there is no substantial question of law involved in this appeal. For the reasons aforesaid, the appeal is found to have no merit and is dismissed with costs. (VIJENDER SINGH MALIK) JUDGE December , 2011 som