RSA No.142 of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision: 13.10.2009 RSA No.142 of 1999 Smt. Bima @ Birma .....Appellant Vs. Inderjit and another ....Respondents RSA No.235 of 1999 Smt. Bima @ Birma .....Appellant Vs. Inderjit and another ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Adish Gupta, Advocate for the appellant. Mr. Adarsh Jain, Advocate for the respondents. .... RAJIVE BHALLA, J (Oral) This order shall dispose of RSA Nos.142 and 235 of 1999, as they relate to the same parties, the same property and require adjudication of the same issues. The appellant, challenges judgements and decrees dated 8.12.1998, passed by the District Judge, Faridabad, accepting the appeal filed by the respondents, setting aside the judgement and decree dated 24.2.1998, passed by the Civil Judge (Junior Division), Faridabad and as a RSA No.142 of 1999 2 result dismissing her suit for grant of a permanent injunction and decreeing the suit for declaration of ownership, filed by the respondents. The plaintiff-appellant filed a suit for permanent injunction to restrain the respondents from interfering in her possession. The appellant pleaded that after the demise of her father Chander Singh on 30.8.1992, she has become owner in joint possession of 1/4th share alongwith her brothers and mother. In response, her brothers, the defendant/respondents filed a written statement denying the averments in the plaint and pleaded that Chander Singh executed a will dated 27.8.1992 bequeathing his estate to his sons Inderjit and Siri Chand, to the exclusion of the appellant. Smt.Kela, the mother of the parties who was arrayed as defendant no.3, filed a written statement supporting the stand taken by the respondents and accepting that her husband executed the will. In addition, the respondents filed a separate suit praying for grant of a declaration that they are owners of the suit land, on the basis of the will dated 27.8.1992. The suits were not consolidated but were decided on the same date. After framing issues and calling upon the parties to lead evidence, the trial court decreed the suit for permanent injunction and dismissed the suit for declaration of ownership by holding that the respondents have failed to prove the due execution of the will or to dispel suspicious circumstances surrounding its execution. Aggrieved by the aforementioned judgement and decree, the respondents filed two separate appeals. Vide judgement and decree dated 8.12.1998, the District Judge, Faridabad, accepted the appeals, set aside the judgement and decree passed by the trial court granting an injunction and decreed the suit for declaration of ownership. The first appellate court held RSA No.142 of 1999 3 that the respondents have proved the execution of the will and had have successfully dispelled all the suspicious circumstances surrounding its execution. The first appellate court, apart from other factors, relied upon the fact that the appellant had thumb marked the will and that the mother of the parties had supported the execution of the will by her late husband. Counsel for the appellant submits that the execution of the will has not been proved in accordance with the provisions of Section 63 of the Indian Succession Act. The respondents have failed to prove the signatures of the testator. Section 63 requires the propounder of a will to establish that the will was written at the behest of the testator, who thereafter appended his signature or mark, in the presence of two or more attesting witnesses. It is argued that in the absence of any evidence, to prove that the signatures, on the will was appended by Chander Singh deceased, the first appellate court committed an error in reversing the judgement and decree passed by the trial court. It is further argued that the execution of the will is surrounded by number of suspicious circumstances, namely.... (a) the will was executed on 27.8.1992, whereas the testator died on 30.8.1992 (b) the will is executed on a plain paper (c ) the will is unregistered (d) the scribe of the will is not a regular deed writer (e) the will was executed at the residence of the testator (f) the testator did not make any provision for his widow (g) the will did not see the light of the day for a period of three years and was only produced in response to the suit filed by the appellant and (h) Rajbir Singh s/o Siri Chand (deceased-respondent no.2) made a statement before the Assistant Collector, Ist Grade, Faridabad that he had no objection, if the mutation was sanctioned in the name of all the children of Chander Singh. It is argued that these circumstances may not be RSA No.142 of 1999 4 individually sufficient to arouse suspicion but when taken collectively would definitely cast a doubt on the authenticity of the will. As the onus to explain these suspicious circumstances lay upon the respondents, their failure to discharge this onus renders the will null and void. It is submitted that in view of the errors committed by the first appellate court, the following substantial questions of law arise for consideration : 1. Whether the respondents have proved the due execution of the will ? 2. Whether the suspicious circumstances, surrounding the execution of the will have been satisfactorily explained ? 3. Whether the first appellate court was justified in reversing the judgement and decree passed by the trial court, particularly when the respondents have failed to prove that the signatures appearing on the will were appended by Chander Singh ? Counsel for the respondents, on the other hand, submits that the judgement and decree passed by the first appellate court do not suffer from any error and no substantial question of law arises for consideration. It is argued that the respondents have proved the execution of the will by their father Chander Singh by producing the scribe Daan Singh DW-1 and one of the attesting witnesses Braham Raj DW-3. In addition they have proved that the will is thumb marked by the appellant herself and their mother. It is submitted that in this view of the matter, the trial court was not justified in holding that the will has not been proved in accordance with the provisions RSA No.142 of 1999 5 of Section 63 of the Indian Succession Act. It is further submitted that the so called suspicious circumstances have been duly explained and it was only after a considered appraisal of the evidence on record that the first appellate court recorded a finding in favour of the respondents. I have heard learned counsel for the parties, perused the impugned judgements and find no reason to hold that the first appellate court has committed any error in appreciating the evidence on record or while recording its conclusion that the will has been proved. The proof of a will, is essentially a question of fact and a finding of fact that is neither arbitrary nor perverse cannot be reversed merely because a superior adjudicatory forum may conclude otherwise, on facts. The appellant and the respondents are the children of Chander Singh, who passed away on 30.8.1992. Before his demise, he executed a will dated 27.8.1992 bequeathing his entire estate to his sons Inderjit and Siri Chand. The will is executed on a simple paper and was scribed by Daan Singh, DW-1, a retired school teacher. The will is witnessed by Braham Raj DW-3 and Rajinder. Daan Singh DW-1 has deposed that Chander Singh, was of sound disposing mind and the will was written as per his instructions. He has further deposed that Chander Singh read the will before he appended his signatures. The attesting witness Braham Raj DW-3 has deposed that the will was scribed by Daan Singh on the instructions of Chander Singh and thereafter Chander Singh appended his signatures in the presence of the attesting witness, who thereafter appended his signatures in his presence. Braham Raj has also deposed that during the execution of the will, the appellant was present and in acknowledgment of RSA No.142 of 1999 6 execution of the will, by her father, she affixed her right thumb impression. He has also deposed that Smt.Kela w/o Chander Singh and mother of the parties, was also present and appended her right thumb impression in acknowledgment of the execution of the will. The fact that Chander Singh died two days after the execution of the will, that the will is executed on an ordinary paper, the will is unregistered, the will was not scribed by a regular deed writer, the will was executed at the residence of the testator, are suspicious circumstances and may in a given case be singularly or cumulatively sufficient to discard a will. In the present case, however, these circumstances pale into insignificance, as the appellant has admitted that the will bears her thumb impression. Though she asserted that when she visited her father, a few days before he passed away, her brothers obtained her thumb impression on blank papers, this plea remains unsubstantiated. This plea appears to be an after thought coined by the appellant to explain an inconvenient fact. The thumb impression of the appellant goes a long way in proving the will and dispelling the suspicious circumstances. This apart Braham Raj, the attesting witness has deposed that the appellant was present at the execution of the will and appended her thumb impression. In addition the will also bears the thumb impression of Smt. Kela the mother of the parties. She was arrayed as a party to the suit by the appellant and filed a written statement that the will had been executed by her late husband. The fact that the execution of the will has been proved by the deposition of the scribe and an attesting witness, bears the thumb mark of the testator, is witnessed by two attesting witnesses, bears the thumb RSA No.142 of 1999 7 impression of the appellant and the mother of the parties, in my considered opinion, is sufficient to hold that the will was executed by Chander Singh. The questions of law framed by counsel for the appellant are, therefore, answered accordingly. In view of what has been stated herein above, as the appeals are devoid of any merit, they are dismissed with no order as to costs. 13.10.2009 (RAJIVE BHALLA) GS JUDGE