R.S.A.No. 3008 of 2009(O&M) -1- In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3008 of 2009(O&M) Date of Decision:August 13, 2009 Davinder Singh ---Appellant versus Attro and others ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Ms. Avinash Mandla,Advocate, for the appellant *** SABINA J. Plaintiff – Smt. Attro filed a suit for declaration and joint possession. Additional Civil Judge ( Sr. Division), Sonepat, vide judgment and decree dated 6.10.2003 decreed the suit of the plaintiff. Aggrieved by the same, defendant No. 1 preferred an appeal and the same was dismissed by Additional District Judge, Sonepat vide judgment and decree dated 17.4.2009. Hence, the present appeal by the defendant No. 1. The facts of the case as noticed by the learned Additional District Judge, in paras 2 to 9 of its judgment read as under:- “Brief facts of the case are that Smt. Attro daughter of Rati Ram son of Jot Ram, resident of village Jatola, Tehsil sonepat, R.S.A.No. 3008 of 2009(O&M) -2- presently wife of Narain Si`ngh, resident of village Dabri, extension Main, New Delhi, has commenced the suit against Devender Singh son of Hukam Chand son of Jot Ram and her sister Savitri daughter of Rati Ram, since deceased through her LRs. The following is the pedigree table of the parties depicted in Para No. 1 of the plaint:- Jot Ram ' Rati Ram Bhim Singh Hukam Chand ' ' Bhagwani widow Devinder Singh of Rati Ram(Dead) (defendant No. 1) Smt. Atrtro Smt. Savitri (Plaintiff) (defendant No. 2) 3. The father of plaintiff and defendant No. 2, Rati Ram was owner in possession of 1/6th share of agricultural land bearing Khewat No. 66, Khata Nos. 92,93 Rect. & Killa No. 1636(2-9), 1637(3-0), 1642 (2-4), 1643(3-0), 1644(3-0), 1645 (3-0), 1646(3-0), 1647(3-0), 1648 (3-2), 1649 (3-0), 1650 (3-0), 1651(3-0), 1652(3-0), 16531-16), 1684(0-6), 1734 (1-13), 1735(3-0), 1736(3-0), 1737 (2-13), 1738 (1-8), 1741 (1-13), 1749(0-1), 1909 (3-0), 1918 (3-0), 1919(2-17), 1987(2-14), 1988 (2-17), 1989(2-17), 1990 (2-17), 1991 (2-17), 2003(2-17), 2004( 2-17), 2005 (2-17), 2006 (2-17), 2007 (2-14), 2022(2- 17), 1654 (0-9), measuring 94 B 7 B (ii) 1/36 share in Khewat No. 70, Khata No. 104, Rect. And killa No. 2160, measuring 0- 10 situated in the revenue estate of village Jatola, Tehsil and R.S.A.No. 3008 of 2009(O&M) -3- district Sonepat, as per jamabandi for the year 1990-91. 4. Shri Rati Ram had died on 5.5.1991 being patient of cancer. His wife Smt. Bhagwani ahd died in the year 1995. Deceased Rati Ram used to cultivate his share of land as discussed above and after his death, Bhagwani, his wife along with plaintiff and defendant No. 2 used to cultivate as they were in possession of the share of the deceased. 5. After the death of mother of plaintiff and defendant No. 2 Smt. Bhagwani, the plaintiff and defendant No. 2 became owner in possession of the share of their father. They continued cultivating the land up to the wheat crop 1996 but in the month of June 1996, defendant No. 1 took forcible possession of the suit land and declared that he is owner in possession of the suit land on the basis of Will alleged to have been executed by Rati Ram in his favour. The plaintiff, therefore, collected the revenue record and came to know that defendant No. 1 has got sanctioned the mutation of Rati Ram deceased in his favour on 19.12.1992 on the basis of oral Will dated 19./3.1987 alleged to have been executed by Rati Ram in his favour. The plaintiff has pleaded that her father had never executed any Will dated 19.3.1987 in favour of defendant No. 1, which is said to be false, forged and fictitious. Rati Ram used to live separately from his brothers. Plaintiff and defendant No. 2 used to look after him along with their mother. Rati Ram was a renowned personality in the surrounding area and was having a high respect in the community. He was R.S.A.No. 3008 of 2009(O&M) -4- having great love and affection for his daughters and wife. It is pleaded that defendant No. 1 has got entered and sanctioned a mutation No. 1635 in revenue record on the basis of forged Will on 19.12.1992 which is illegal, void and not binding upon the rights of plaintiff and defendant No. 2. 6. The plaintiff requested the defendant No. 1 to declare the Will as forged, fictitious and null and set aside the mutation No. 1635 dated 19.12.1992 and further admit the plaintiff and defendant No. 2 as owners of the suit land but defendant No. 1 has refused on 1.8.1996. Hence, the plaintiff has commenced a suit for declaration to the effect that Will dated 19.3.1987 alleged to have been executed by Rati Ram in favour of defendant No. 1 is false, forged and fictitious and is void, not binding upon the rights of the plaintiff and setting aside the mutation No. 1635 which has been sanctioned on the basis of the said will and further a decree for joint possession of the suit land is also sought by the plaintiff. 7. Notice of the suit was sent to the defendants. Both the defendants have filed the joint written statement wherein preliminary objections are raised that the suit of the plaintiff is not maintainable in the present form; the plaintiff has not locus standi and no cause of action to file the same. She is neither owner nor in possession of the alleged suit property. She has suppressed the material facts from the court and has not come with clean hands and is further estopped by her own act and conduct from filing the suit which is barred by limitation. It is R.S.A.No. 3008 of 2009(O&M) -5- pleaded that plaintiff has dragged the defendants into unnecessary and unwanted litigation. Thus, the defendants are entitled for special costs under Section 35-A CPC. 8. On merits, the defendants have admitted it correct that Rati Ram was only owner of 1/6th share of agriculture land fully detailed in para No. 2 of the plaint, whereas the defendant No. 1 and his father Hukan Chand are in cultivating possession of the land of Rati Ram for the last more than 40 years. The death of Rati Ram and Bhagwani is not disputed but it is specifically denied that after the death of Rati Tam, his wife along with plaintiff and defendant No. 2 used to cultivate the suit land . The said land is pleaded to be cultivated by defendant No. 1 and prior to him , the same was cultivated by Hukam Chand, father of defendant No. 1 who used to look after Rati Ram during his last days. It is specifically denied as wrong that after the death of father of plaintiff and defendant No. 2, Smt. Bhagwani and plaintiff and defendant No. 2 became owner in possession of the share of Rati Ram. It is denied that in the month of June 1996, defendant No. 1 took the cultivating possession of the suit land forcibly. Further, it is pleaded that Rati Ram was not having any male issue. The plaintiff and defendant No. 2 were got married by him and now they are living in the matrimonial homes and Rati Ram was being looked after by Devender Singh,m defendant No. 1 who is the real nephew of Rati Ram and he used to take care and look after Rati Ram and his entire property, including the suit property. R.S.A.No. 3008 of 2009(O&M) -6- He used to treat Davinder as his real son. Defendant No. 1 has look after the ceremonies of plaintiff and defendant No. 2, religious as well as matrimonial, as their real brother. 9. On 19.3.1987, Rati Ram executed a Will in favour of Devender Singh in the presence of witnesses, plaintiff and defendant No. 2 and other family members. It is specifically denied as wrong that alleged Will is false, fictitious and was not executed by Rati Ram, in favour of defendant No. 1. Remaining allegations available in the plaint are denied. It is pleaded that the mutation has been allegedly sanctioned on the basis of legal and valid will in favour of defendant No. 1, which cannot be challenged by the plaintiff. The defendant No. 1 has categorically pleaded that plaintiff has no cause of action because she and defendant No. 2 were well aware of the Will executed by Rati Ram in favour of defendant No. 1.” On the pleadings of the parties, following issued were framed by the learned trial court:- (1)Whether the plaintiff is entitled for the decree as prayed for? OPP (2) Whether the Will dated 19.3.1987 executed by Rati Ram is genuine and binding upon the plaintiff? OPD (3) Whether the suit of the plaintiff is not maintainable in the present form? OPD (4)Whether the plaintiff has no locus standi to file the present suit? OPD (5)Whether the plaintiff has no cause of action to file the R.S.A.No. 3008 of 2009(O&M) -7- present suit? OPD (6) Whether the suit is time barred? OPD (7)Whether the defendant is entitled for special costs under Section 35-A CPC? OPD (8)Relief. After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. The Will in question dated 19.3.1987 is alleged to have been executed by Rati Ram in favour of defendant No. 1 Devender Singh. 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 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 witnesses 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 R.S.A.No. 3008 of 2009(O&M) -8- 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. In the present case, the Will in question in an unregistered document. Although the registration of Will is not compulsory yet it goes a long way in establishing the genuineness of the Will. Although the defendant had examined DW-5 -Umrav Singh the attesting witness to the Will, yet defendant No. 1 has failed to dispel the suspicious circumstance surrounding the Will. Said witness deposed that the Will was got registered but the Will placed on record is an unregistered document. Learned Additional District Judge, after appreciating the evidence on record, held that the attesting witness examined by the appellant had shattered the case of the appellant with regard to the due execution of the Will. The case of defendant No. 1 was that he had been adopted by Rati Ram about 20 years ago. Learned trial court has noticed that the age disclosed by the defendant No. 1 when he appeared in the witness box, was 43 years and hence, as per defendant No. 1 his age was 17-18 years at the time of adoption. As per the Hindu Adoption & Maintenance Act, 1956 a person who is aged about 17-18 years cannot be validly taken for adoption. The natural heir has been disinterested without any justifiable R.S.A.No. 3008 of 2009(O&M) -9- cause. It has further been observed by the learned Additional District Judge that in the register produced by DW-6 Deepak Gupta maintained by Jai Bhagwan Gupta, Deed Writer, since deceased, signatures of the marginal witness were not available. It has also not been explained as to why the Will in question was thumb marked whereas Rati Ram used to affix his signatures at the time of receipt of pension. Moreover, original Will was not placed on record. As per defendant No. 1 he had handed over the Will in question to Chand Ram Patwari but the said Patwari was not examined by the appellant. Keeping in view the factual matrix of this case, both the courts below had rightly held that the Will in question is not a genuine document in the eyes of law. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE August 13, 2009 PARAMJIT