RSA No. 4138 of 2008 (O&M) (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 4138 of 2008 (O&M) Date of Decision: 9.9.2009 Sarabjit Kaur ......Appellant Versus Gurdev Kaur and others .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri R.K. Girdhar, Advocate, for the appellant. Shri Surinder Garg, Advocate, for the respondents. HEMANT GUPTA, J. (Oral). The defendant is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby suit filed by the plaintiffs claiming estate of Balwinder Singh by way of natural succession, was decreed. The plaintiffs are widow and children of Balwinder Singh, who died on 4.6.2004. The defendant asserted herself to be wife of Balwinder Singh and relied upon a registered Will dated 23.12.2003 Exhibit D.1 to claim the estate of Balwinder Singh exclusively. Though the learned trial Court dismissed the suit, but the learned first Appellate Court reversed the judgment and decree passed by the learned trial Court and decreed the suit. The defendant examined DW2 Sohan Singh and DW3 Kabal RSA No. 4138 of 2008 (O&M) (2) Singh, the attesting witnesses of the Will dated 23.12.2003. Both the witnesses have deposed that they did not know Balwinder Singh personally. DW-2, Sohan Singh deposed that he attested the Will at the instance of Harjit Singh of village Bholuwala i.e., the village of defendant. However, Harjit Singh was not present at the time of attestation of the Will. Therefore, from the statement of DW-2, Sohan Singh, it was found that the identity of the testator was not established. Similarly, it was found that DW-3, Kabal Singh, has deposed that he knew Balwinder Singh, through Sarabjit Kaur-defendant only. In view of the said statements, the learned first Appellate Court has recorded a categorical finding of fact that the Will dated 23.12.2003 is not proved to be executed. Learned counsel for the appellant has moved an application under Order 41 Rule 27 CPC to lead additional evidence in respect of her marriage by producing death certificate of Balwinder Singh. Affidavits of the appellant and that of Balwinder Singh dated 25.10.1999, the voter identity cards and the ration cards of the appellant and Balwinder Singh. The said documents sought to be produced in additional evidence are for the period 1999-2003. The suit for declaration was filed in the year 2005 and decided by the learned trial Court on 9.8.2008. The appellant has not produced such document during the course of trial and when such documents were available. The appellant cannot be permitted to fill up lacuna, much less in the second appeal. In view of the said fact, I do not find that any justifiable reason is disclosed for permitting the additional evidence at this stage as such evidence, if permitted will lead to de-novo trial. Such evidence is not necessary for pronouncing the judgment on the basis of evidence already on RSA No. 4138 of 2008 (O&M) (3) record. Both the attesting witnesses of the Will have not identified the testator. The learned first Appellate Court has examined the statements of the attesting witnesses in a minute detail and returned a finding of fact that the statements of such witnesses are not sufficient to prove the execution of the Will. Consequently, I do not find any patent illegality or material irregularity in the finding recorded or that the finding recorded gives rise to any substantial question of law in the present second appeal. Hence, the present appeal is dismissed. (HEMANT GUPTA) JUDGE 9.9.2009 ds