Regular Second Appeal No. 1035 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1035 of 2010(O&M) Date of decision : August 20, 2010 Suresh Chand Goyal ....Appellant versus Kailash Chand and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. J.S.Hooda, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 3045.C of 2010 This is application for bringing on record legal representatives of Ramkali plaintiff no. 2 since deceased. It is alleged that plaintiff no. 1 appellant and all the six respondents are the only legal heirs of plaintiff no. 2 since deceased being her sons and daughters. The application is accompanied by affidavit. Accordingly, the application is allowed subject to all just exceptions and appellant and respondents no. 1 to 6 are ordered to be brought on record as legal representatives of Ramkali plaintiff no. 2 since deceased for the purpose of this appeal. CM No. 3046.C of 2010 For the reasons mentioned in the application which is Regular Second Appeal No. 1035 of 2010(O&M) -2- accompanied by affidavit, delay of 25 days in refiling the appeal is condoned. CM No. 3047.C of 2010 Allowed as prayed for. CM No. 3048.C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 114 days in filing the appeal is condoned. RSA No. 1035 of 2010 Plaintiff no. 1 has filed the instant second appeal having remained unsuccessful in both the courts below. Appellant and respondents are also legal representatives of their mother Ramkali plaintiff no. 2 since deceased. Suit was filed by appellant and Ramkali against respondents. Respondents no. 1 to 3 are brothers of the appellant whereas respondents no. 4 to 6 are their sisters. The plaintiffs sought partition of suit property i.e. Haveli and Nohra. It was alleged that Mussaddi Lal predecessor of the parties was owner of half share in suit property whereas Sona Mal was owner of the other half share. Sona Mal had adopted Babu Lal as son. On the death of Sona Mal his half share in the suit property was inherited by Babu Lal who executed a Will of the said half share in favour of plaintiff no. 1-appellant. Plaintiffs and defendants inherited the other half share of Mussaddi Lal in the suit property in equal shares i.e. 1/16th share each. In this manner, plaintiff no. 1 claimed 9/16th share in the suit property and the plaintiffs alleged that plaintiff no. 2 and all the six defendants had 1/16th share each in the suit property. Regular Second Appeal No. 1035 of 2010(O&M) -3- Defendants no. 2 to 6 admitted the claim of the plaintiffs. Defendant no. 1 contested the suit and raised various preliminary objections. It was also pleaded that Prem Chand who is son of Babu Lal is a necessary party to the suit but has not been impleaded. Plaint allegations regarding share of plaintiff no. 1 were controverted. It was pleaded that suit property is ancestral and co-parcenary property and therefore, only plaintiff no. 1 and defendants no. 1 to 3 being sons of Mussaddi Lal have share therein and plaintiff no. 2 and defendants no. 4 to 6 have no right, title or interest therein. It was also pleaded that Prem Chand is also co-sharer in the suit property having half share inherited from Babu Lal. Execution of Will dated 19.4.1990 by Babu Lal in favour of plaintiff no. 1 was denied. The said Will was alleged to be forged and fabricated. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Mobile Court at Punhana vide judgment and decree dated 6.8.2008 dismissed the plaintiffs' suit. First appeal preferred by plaintiffs has been dismissed by learned Additional District Judge, Nuh vide judgment and decree dated 24.2.2009. Feeling aggrieved, plaintiff no. 1 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant contended that Will executed by Babu Lal in favour of plaintiff no. 1 has been proved because its scribe Tula Ram Gupta has been examined as witness and also Raghbir PW3 has been examined to prove the signatures of Fateh Ram since deceased Regular Second Appeal No. 1035 of 2010(O&M) -4- attesting witness of the Will. The contention cannot be accepted. Scribe Tula Ram admitted that he did not know the executant of the Will namely Babu Lal nor plaintiff no. 1 was known to him. He also stated that other attesting witness namely Bashir was also not known to him. According to section 63 of the Indian Succession Act, 1925, Will is required by the said provision of law to be attested by at least two witnesses. Section 68 of the Evidence Act stipulates that where a document is required by law to be attested by witnesses, it shall be necessary to examine at least one attesting witness of the document for the purpose of proving its execution. In the instant case, however, no attesting witness has been examined to prove the execution of the Will. Bashir second attesting witness of the Will was alive but has not been examined. Consequently, Will has not been proved as there is non compliance of mandatory provision of section 68 of the Evidence Act. Learned counsel for the appellant contended that the Will is registered one. However, proviso to section 68 of the Evidence Act stipulates that even if the Will is registered one, it cannot be admitted in evidence without examination of its attesting witness. The plaintiffs have, thus, failed to prove the execution of alleged Will by Babu Lal in favour of plaintiff no. 1. In addition to the aforesaid, defendant no. 1 specifically pleaded in the written statement that Prem Chand son of Babu Lal being heir of Babu Lal is necessary party to the suit but in spite of that objection, Prem Chand was not impleaded as party to the suit. In the absence of Prem Chand being party to the suit, the question of Will allegedly executed by Babu Lal in favour of plaintiff no. 1 could not be adjudicated upon finally Regular Second Appeal No. 1035 of 2010(O&M) -5- and effectively because it would adversely effect the rights of Prem Chand. On the other hand, Prem Chand being natural heir of Babu Lal inherited his half share in the suit property because in the absence of the alleged Will. Thus, Prem Chand was necessary party for adjudicating the question of alleged Will as well as for seeking partition of the suit property in the absence of Will. Prem Chand would become co-sharer in the suit property to the extent of half share. However, in spite of objection raised by defendant no. 1 at the earliest stage in the written statement, Prem Chand was not impleaded as party to the suit. Learned counsel for the appellant contended that Prem Chand throughout was aware of the claim of the plaintiffs and was also aware of the Will but he never challenged the same. The contention has been noticed simply to be rejected being devoid of any merit because there is neither any such plea nor any material on record to substantiate the aforesaid contention. On the other hand, for the first time Will was set up in the instant suit to which Prem Chand has not been made party and therefore, there was no occasion for Prem Chand to be aware of the Will or to challenge the same. The suit has also been found to be bad for partial partition because Mussaddi Lal and Sona Mal also had joint shops which have not been included in the instant suit. Learned counsel for the appellant contended that the said shops had fallen to the share of Sona Mal exclusively vide compromise Ex. PW4/5 and order PW4/6 and decree sheet Ex. PW4/7. The contention cannot be accepted. In site plans in Ex. PW1/1 (Naksha D & F) relating to the aforesaid litigation two shops have been depicted to be owned by Mussaddi Lal (predecessor of the parties) and Regular Second Appeal No. 1035 of 2010(O&M) -6- in Naksha E, two other shops have been shown to be jointly owned by Sona Mal and Mussaddi Lal. Consequently, it cannot be said that the said shops were not joint properties of the parties and heir of Sona Mal. However, the plaintiffs have not sought partition of the said shops and the suit is, thus, bad for partial partition. Plaintiff no. 1 admitted in his cross-examination that the aforesaid shops were in possession of Mussaddi Lal and are now in possession of plaintiff no. 1. The plaintiffs, thus, cleverly filed the instant suit for partition by including property which is under possession of the defendants and by not including property which is under possession of plaintiff no. 1. The admission of plaintiff no. 1 that the aforesaid shops were in possession of Mussaddi Lal would also depict that the said shops did not belong to Sona Mal exclusively. For the reasons recorded hereinabove, I find no merit in the instant second appeal. Both the courts below have duly appreciated the evidence and come to concurrent finding against the plaintiffs. The said finding is not shown to be perverse or illegal in any manner and therefore, does not warrant interference in the second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. ( L.N. Mittal ) August 20, 2010 Judge 'dalbir'