R.S.A. No. 369 of 2010 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 369 of 2010 (O&M) Date of Decision : 29.1.2010 Shugan Chand .......... Appellant Versus Bachni Devi & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Vivek Khatri, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 23.11.2009, passed by the learned Courts below, vide which suit for declaration filed by the plaintiff / appellant, was ordered to be dismissed. The plaintiff / appellant sought a decree of declaration by pleading that Paras Ram, father of the defendant / respondents was owner to the extent of 1/8th share in the land in dispute. Sh. Paras Ram did not have any male issue, therefore, was residing with the plaintiff / appellant, as there was no one to look after Sh. Paras Ram, as his two daughters i.e. defendants were already married. Out of love and affection Sh. Paras Ram executed a registered Will dated 14.3.1995, in favour of the plaintiff / appellant. The land was said to be in cultivating possession of the appellant even during the life time of Sh. Paras Ram. R.S.A. No. 369 of 2010 2 The case of the plaintiff / appellant was, that he came to know about the sanctioning of mutation in favour of the defendant / respondents, when he went to get mutation sanctioned in his favour, on the basis of the Will executed in his favour. Consequential, relief of restraining the defendant / respondents from alienating the suit property by transfer or mortgage was also prayed. The suit was contested by taking preliminary objections regarding maintainability of the suit and that of estoppel. On merits, it was pleaded, that the plaintiff / appellant never served deceased Sh. Paras Ram, therefore, there was no question of executing Will in his favour. The property in the hands of Sh. Paras Ram was said to be ancestral in nature, therefore, he was not competent to execute the Will. The Will was result of fraud and misrepresentation. It was also denied, that plaintiff ever cultivated the land, as claimed. On the pleadings of the parties, the learned trial Court framed the following issues :- “1. Whether mutation No. 1968 sanctioned on 6.7.2000 is illegal, null and void and is liable to be set aside? OPP 2. Whether the registered Will dated 14.3.1995 executed by Paras Ram in favour of the plaintiff?OPP 3. If issue No.1 and 2 are proved, whether the plaintiff is entitled for permanent injunction on the grounds mentioned in the plaint?OPP 4. Whether the suit of the plaintiff is not maintainable?OPD R.S.A. No. 369 of 2010 3 5. Whether the plaintiff has no cause of action and locus standi to file the present suit?OPD 6. Whether the plaintiff is estopped from filing the suit by his own act and conduct?OPD 7. Whether the suit property in the hands of Paras Ram was ancestral in nature and after the death of Paras Ram, defendants inherited the property being legal heirs?OPD 8. Relief.” The learned trial Court on appreciation of evidence held mutation No. 1968 sanctioned on 6.7.2000 to be legal and valid. On issue No.2, it was held that plaintiff / appellant failed to prove the Will, and issue No.2 was decided against the plaintiff. In view of the findings recorded on issues No.1 & 2, issue No.3 was also decided against the plaintiff / appellant. Issues No. 4, 5 & 6 were decided in favour of the plaintiff / appellant as the defendant / respondents did not press these issues. However, issue No.7 was decided against the plaintiff / appellant in view of admission made that the property was ancestral in nature. In view of the findings recorded by the learned trial Court, the suit was dismissed and appeal was also dismissed. Mr. Vivek Khatri, learned counsel for the appellant contended that this appeal raises the following substantial questions of law :- 1. Whether the registered Will dated R.S.A. No. 369 of 2010 4 14.3.1995, executed by Paras Ram in favour of appellant / plaintiff is genuine? 2. Whether the registered Will dated 14.3.1995, executed by Paras Ram in favour of appellant / plaintiff is binding upon the parties to the suit? 3. Whether Paras Ram had a right to execute the Will in favour of the appellant ? 4. Whether Paras Ram had a right to execute a Will in favour of the appellant / plaintiff, of his ancestral property, when he was not having any male issue? 5. Whether the mutation No. 1968 sanctioned on 6.7.2000 is illegal, null and void and the same is liable to be set aside? 6. Whether the judgments and decrees passed by both the courts below are based on misreading and misinterpretation of the evidence on the record, thus, perverse? On the first substantial question of law, the learned counsel for the appellant contended, that the Will dated 14.3.1995 was a genuine Will. It was duly proved by one of the attesting witness as the scribe. The learned Courts below wrongly held the Will to be not genuine.The contention of the learned counsel for the appellant was, that the findings recorded by the learned Courts below were result of misreading of evidence. On the second substantial question of law, the learned counsel for the appellant contends that Paras Ram being the last male holder of the property, had every right to dispose of the property by Will, as the defendants being daughters could not be held to be coparceners on 14.3.1995 i.e. the date of execution of the Will. R.S.A. No. 369 of 2010 5 The learned counsel for the appellant on the third substantial question of law, also contended, that once Paras Ram was the last male holder of ancestral property, and had a right to execute the Will in favour of the appellant. The learned Courts below were wrong in holding, that Paras Ram did not have any right to execute the Will in favour of the plaintiff / appellant. The findings recorded by the learned trial Court were said to be perverse. The same contention was raised in support of substantial question No.4. In support of substantial question of law No.5, the learned counsel for the appellant contended, that in view of the contentions raised on substantial questions No. 1 & 4, the mutation No. 1968 was illegal, null and void. The findings recorded by the learned Courts below on issue No.1 being perverse deserved to be set aside. On the last substantial question of law, the learned counsel for the appellant, referred to the statements of PW2 & PW3, to contend that the findings recorded by the learned Courts below are outcome of misreading of evidence. By placing reliance on the judgment of this Court in the case of Nachhattar Kaur & Ors. Vs. Amarjit Kaur & Ors. 2009(3) Law Herald (P&H) 2249 learned learned counsel contend, that the learned Courts below misapplied the law in not drawing the presumption of truth to the registered Will, as the endorsement of the Registrar that Will was read over to the executant and that he had signed the same after admitting it to be correct, has presumption of truth attached to it. On consideration of matter, I find no force in the contentions R.S.A. No. 369 of 2010 6 raised by the learned counsel for the appellant. As a matter of fact, the petitioner examined only one of the attesting witnesses of the Will to prove the Will. He did not support the Will, as he only admitted his signatures on the Will but in cross-examination admitted that he never visited Panchkula, though the Will was said to have been executed at Panchkula. Similarly, the scribe did not produce any scribe register to prove the presence of the witnesses or the executant at the time of registration of the Will. The appellant did not raise contention before the learned Courts below regarding endorsement of the Will. The finding of fact stands recorded by the learned Courts below, on appreciation of evidence. The substantial questions of law No. 1, 2 & 3 deserve to be answered against the appellant, as the appellant had failed to prove the due execution of the Will. The learned Courts below were, therefore, justified in non-suiting the plaintiff / appellant. The learned counsel for the appellant also relied upon the judgment of this Court in the case Raj Kumar & Anr. Vs. Kailon Devi 2009 (3) Law Herald (P&H) 1955 to contend that if one of the attesting witness proves the Will then the Will stands proved. In view of the finding recorded, this judgment is also of no help to the appellant, as the only witness examined by him failed to prove the due execution of the Will as per the law, as in his cross-examination he admitted that he never visited Panchkula, where Will was said to have been executed. The learned counsel for the appellant also placed reliance on the judgment of this Court in the case of Bhagwan Kaur Vs. Malwinder Singh and Ors. 2009(3) Law Herald (P&H) 2047, again with regard to the R.S.A. No. 369 of 2010 7 fact that the registration of Will goes a long way in establishing the genuineness of the Will. As observed above, appellant having failed to prove the execution of the Will, as per Sections 68 & 69 of the Evidence Act, no fault could be found with the findings recorded by the learned Courts below. The learned counsel for the appellant also contended, that the learned Courts below misread the evidence, and wrongly non-suited the appellant because of certain typographical errors in the Will. The contention of the learned counsel for the appellant was that this could not be a ground to reject the Will. In support of this contention the learned counsel for the appellant placed reliance on the judgment of this Court in the case of Sh. Ashok Kumar Pandhi & Ors. Vs. Ashwani Kumar Pandhi & Anr. 2009(3) Law Herald (P&H) 2326. This contention of the learned counsel for the appellant deserves to be noticed to be rejected, as the Will propounded by the appellant was rejected not on account of typographical error, but it was held that different dates were shown on different pages, which was a suspicious circumstance, which the plaintiff failed to explain or dispel. Even otherwise, as already observed above, the Will was not proved in accordance with law, therefore, this judgment again can be of no help to the appellant. Finally, the learned counsel for the appellant placed reliance on the judgment of the Hon'ble Supreme Court in the case of Benga Behera & Anr. Vs. Braja Kishore Nanda & Ors., 2007(3)RCR (Civil) 240, to contend that Will was required to be attested by two or more witnesses, each R.S.A. No. 369 of 2010 8 of whom should have seen the testator sign or affix his mark to the Will. There can be no dispute with this proposition of law, however, appellant has failed to prove the due execution of the Will, as held by the Hon'ble Supreme Court in the judgment relied upon by the appellant. The substantial questions of law are answered against the appellant. No merit. Dismissed. 29.1.2010 ( VINOD K. SHARMA ) 'sp' JUDGE