RSA No.2496 of 2006 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 2496 of 2006 (O&M) Date of Decision: September 02, 2009 Man Mohan Gupta ...........Appellant Versus Deepak Gupta ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Amit Jain, Advocate for the appellant. Mr.Amit Jain,Advocate for the respondents ** Sabina, J. Plaintiff-Deepak Gupta filed a suit for possession by way of mandatory injunction. The said suit of the plaintiff was dismissed by the Civil Judge (Junior Division) Gurgaon vide judgment and decree dated 24.5.2005. Aggrieved by the same, plaintiff filed an appeal and the same was allowed by the Additional District Judge Gurgaon vide judgment and decree dated 27.4.2006 and it was directed that the defendant would hand over the vacant possession of the disputed portion of the house in question in his possession to the plaintiff within a period of three months from today. Resultantly, the counter claim of the defendant was dismissed. Hence, the present appeal by the defendant-Man Mohan Gupta. The case of the parties, as noticed by the learned Additional RSA No.2496 of 2006 (O&M) 2 District Judge, in paras 2 to 5 of its judgment reads as under:- “ 2. Briefly stated the allegations of the plaintiff are that he was owner of the house No. 362-P, Sector 14, Urban Estate, Gurgaon, shown by letters ABCD in the plan filed along with the plaint and as detailed in para No.1 of the plaint. He is in possession of the portion shown by letters ABCDEFHIJD while his real broteher i.e. the defendant in possession of the portion shown by letters EFGHIJ in red colour, as a licensee under him without payment of any rent in cash or kind. Any how, in the month of October, 2002, the said licence was terminated by him and after the termination thereof, the defendant has got no right, title or interest to remain in possession of the said portion but he refused to hand over the vacant possession thereof. Hence, the suit. 3. The defendant in his written statement has taken preliminary objections regarding estoppel, locus standi, non-joinder & mis- joinder, cause of action, jurisdiction, court fee, limitation and concealment of material facts from the court. On merits, it was denied that the plaintiff was owner in possession of the disputed house rather it was he (defendant) who has been in possession of the same for the last 20 years. In fact, the defendant and other three brothers are residing in Delhi at different places for the last about 20 years. After the death of their (parties) father Bal Kishan, his seven legal heirs including the parties, were entitled to inherit his properties but the plaintiff fraudulently procured and got registered a will dated 7.10.1996 from Bal Kishan in his favour and on the basis of the same he got prepared a bogus RSA No.2496 of 2006 (O&M) 3 affidavit and produced n HUDA Department claiming himself as his sole legal heir. In fact, Bal Kishan being not in senses because of illness and old age, was not in a position to execute the alleged will in favour of the plaintiff debarring his other legal heirs to inherit his property. As such, the alleged will was liable to be set aside. All other allegations were denied in toto and dismissal of the suit was prayed for. 4. The defendant also filed counter claim on the above averments and a decree for declaration that the will dated 7.10.1996 was null & void, illegal, non-est and not binding on his rights and that of other LRs of deceased Bal Kishan, was prayed for. 5.In reply to the counter claim as well as replication, the plaintiff controverted the counter allegations and reiterated his stand taken in the plaint. The preliminary objections regarding maintainability of the counter claim, locus standi and cause of action to file the counter claim were taken. In the reply on merits to the counter claim, it was averred that the disputed house was the self acquired property of his (plaintiff's) father and during his life time, he executed a legal and valid will in his favour by virtue of which he has become absolute owner of the same. It is wrong that the defendant has been in possession of the disputed house for the last more than 20 years but, in fact, major portion thereof was in his possession and the defendant was in permissive possession of one bed-room and toilet only. All other allegations in the counter claim as well as written statement were denied and dismissal of the same and decretal of the suit was prayed for. RSA No.2496 of 2006 (O&M) 4 On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiff is owner of house bearing No.362-P, Sector 14, Urban Estate, Gurgaon and is in possession of portion ABCDEFGHJD shown in the site plan attached with the plaint?OPP 2. Whether defendant is licensee in the portion shown in red colour in the site plan attached with the plaint and by letters EFGHIJ without payment of any rent or any amount?OPP 3. Whether plaintiff is entitled to recover the possession of the portion shown in red colour in the site plan attached with the plaint?OPP 4. Whether on the death of Sh.Bal Kishan, all the LRs became owner of the suit property?OPP 5. Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD 6. Whether the plaintiff has no locus standi to file the present suit?OPP 7. Whether suit is bad for non-joinder and mis-joinder of necessary parties?OPD 8. Whether court has no jurisdiction to file the present suit?OPD 9. Whether there is no cause of action to file the present suit?OPD 10. Whether the suit is time barred?OPD 11. Whether plaintiff has concealed the true facts from the court?OPD RSA No.2496 of 2006 (O&M) 5 12. Whether the counter claim of defendant is liable to be decreed?OPD 13. Relief” After hearing the learned counsel for the parties, I am of the opinion that this appeal is devoid of any merit. Plaintiff filed a suit for possession by way of mandatory injunction. Both the plaintiff and defendants are real brothers. The case of the plaintiff is that he was owner of the house in dispute and defendant was in possession of portion of the house in question as a licensee whereas, the license of defendant had been terminated in October 2002. Defendant was liable to hand over the vacant possession of the house in dispute to the plaintiff. Defendant, on the other hand, has denied the ownership of the plaintiff qua the suit land and along with written statement, a counter claim was filed by the defendant wherein it was prayed that the Will dated 7.10.1996 (Exhibit P2) be declared null and void. The Will in question (Exhibit P2) is a registered document. The said Will was executed by Bal Krishan Gupta, father of the appellant on 7.10.1996. As per the same, the house in dispute was given by the executant to the plaintiff. 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 RSA No.2496 of 2006 (O&M) 6 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 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. The executant had executed the Will in the year 1996 and admittedly, the executant died in the year 1999. During his life time, the executant did not cancel the Will. Although Will is not required to be compulsory registered yet registration of the Will goes a long way in proving the genuineness of the Will. The endorsement made by the Sub RSA No.2496 of 2006 (O&M) 7 Registrar at the time of registration of the Will has a presumption of truth. There is nothing on record to suggest that the said presumption stands rebutted. As per the endorsement, the Will in question was read over to the executant. The defendant, on the other hand, failed to establish that the Will was result of fraud and misrepresentation or that it was surrounded by any suspicious circumstances. Although no reference has been made with regard to the disinheritance of other legal heirs by the executant but this, itself in the facts and circumstances of the present case, cannot be said to render the Will a suspicious document. The Will is always a deviation from natural succession. The testator had executed the Will in favour of one of his sons i.e. plaintiff. In order to prove the execution of the Will, plaintiff had examined PW2 Ved Parkash Aggarwal, scribe of the Will and Hem Raj Khatana, attesting witness to the Will. Both the witnesses have deposed that the Will was duly executed by the executant in their presence. Hence, the learned Additional District Judge rightly held that the Will dated 7.10.1996 (Exhibit P2) was a genuine document. Vide (Exhibit P1) dated 13.12.2000, the house in question was re-allotted to the plaintiff after the death of Bal Krishan Gupta on 20.2.1999. The Will in question was placed on record by the plaintiff before the plot in question was reallotted to him. In these circumstances, learned Additional District Judge further rightly held that the defendant was a licensee in a portion of the house in dispute and since the license has been terminated in October, 2002, the plaintiff was entitled to get the possession of the house in dispute. RSA No.2496 of 2006 (O&M) 8 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 September 02, 2009 arya