R.S.A. No. 2010 of 1985 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- R.S.A. No. 2010 of 1985 (O&M) Date of decision:- 15.9.2010 Udham Kaur & Ors. ... Appellants Versus Gurdev Singh ... Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. J.L.Malhotra, Advocate, for the appellants. Mr. Saurav Verma, Advocate, for the petitioner. Gurdev Singh, J (oral) The defendants/appellants – Udham Kaur, Gian Singh and Bhagat Singh have preferred this second appeal against the judgment and decree dated 19.3.1985 passed by Additional District Judge, Jalandhar, vide which he accepted the appeal preferred by the plaintiff/respondent -Gurdev Singh against the judgment and decree dated 20.7.1982 passed by Sub Judge, Ist Class, Phillaur, vide which he dismissed the suit of the plaintiff for declaration to the effect that he is the owner in possession of the land in dispute on the basis of the Will dated 13.9.1976 executed in his favour by Chanan Singh – deceased, who was the owner of that land. The case of the plaintiff, as pleaded in the plaint, is that Chanan Singh was the brother of his father Hazara Singh and the defendants are his brothers and sister. During his life time he executed a registered Will dated 13.9.1976, bequeathing his movable and immovable property in his favour. R.S.A. No. 2010 of 1985 (O&M) -2- After his death he became the owner of the land in dispute. Though the defendants have no right interest therein, yet they started declaring themselves that they have got ownership of the property on the basis of mutation, which necessitated the filing of suit for declaration. The suit was contested by the defendants, who filed a joint written statement in which they admitted the relationship with the plaintiff and Chanan Singh – deceased and the sanctioning of the mutation in their favour. However, they denied the other contentions made in the plaint and pleaded that no such Will was executed by Chanan Singh in favour of the plaintiff and that they along with plaintiff inherited his estate in equal shares. The Will so put forward by the plaintiff was never executed by Chanan Singh and is forged and fabricated document. They also took the pleas by way of preliminary objections that the plaintiff has no locus standi to file the present suit and that the same is bad for misjoinder and non- joinder of the necessary parties. On the pleadings of the parties following issues were framed by the learned trial Court:- 1. Whether Chanan Singh deceased executed a valid Will dated 13.9.76 in favour of the plaintiff? If so, to what effect?OPP 2. Whether the plaintiff has got no locus standi to file the present suit?OPD 3. Whether the suit in the present form is not maintainable? OPD. 4. Whether the suit is bad for mis-joinder and non joinder of necessary parties?OPD R.S.A. No. 2010 of 1985 (O&M) -3- 5. Relief. To succeed in the suit, the plaintiff himself entered the witness box as PW-3 and examined Gurdev Singh one of the attesting witness and Satya Dev – deed writer, who scribed the Will, as PW1 and PW2, respectively. On the other hand Udham Kaur entered the witness box as DW1. After going through the evidence so produced and hearing learned counsel for both the sides, learned trial Court decided Issue No.1 against the plaintiff and other issues in his favour and resultantly dismissed the suit. The plaintiff preferred an appeal against the judgment and decree, which was accepted by the Additional Sessions Judge vide aforesaid judgment and decree. I have heard learned counsel for the parties. It has been submitted by learned counsel for the defendants that the Will propounded by the plaintiff is shrouded by suspicious circumstances, which have not been explained. He never got compared the thumb impression of Chanan Singh on that Will with his admitted thumb impression from the finger print expert for proving that the Will bear his thumb impression. This Will was got scribed from a deed writer, who was just an assistant to senior deed writer; namely, Gurdev Singh, who was very close to the testator and in all probability the testator would have gone to that senior deed writer. He also contended that from the evidence it stands proved that the plaintiff was very much present at the time of the execution of the Will vide which similarly situated legal heirs were ignored. His very R.S.A. No. 2010 of 1985 (O&M) -4- presence shows that he took active part in the execution of the Will. All these suspicious circumstances were never explained by the plaintiff and as such the Will cannot be held to be genuine doucument. I do not find any merit in these arguments. There is no requirement of law that some document expert must be examined for proving the thumb mark/signature of the testator. The will like any other document, required to be attested, is to be proved in accordance with the provision contained in Section 68 of the Evidence Act, 1872. However, the proving of the Will stands at a higher pedestal and propounder thereof is required to prove that the same was executed by the testator while in sound disposing mind and where the same is shrouded by any suspicious circumstances, the same are required to be sufficiently explained. Baldev Singh – PW- 1 specifially deposed that contents of the Will were read over to the testator and he had put his thumb mark on that Will in his presence and that he himself had put his attestation in the presence of that testator. He also stated that other attesting witness was Kartar Singh, who was present at that time and he also attested this Will. The statement of this attesting witness has been fully cor roborated by Satya Dev deed writer, who scribed the same. There is no discripency on contradiction in their statements. From their statements the due execution of the Will stands proved. The Will is meant for divesting some of the legal heirs and divesting of any legal heir, who may be similarly situated, cannot be said to R.S.A. No. 2010 of 1985 (O&M) -5- be a suspicious circumstance. Mere presence of the beneficiary at the time of the execution of the Will is not suspicious circumstance. However, in case that beneficiary takes an active part in the execution of the Will then it becomes a suspicious circumstance so as to entertain a doubt about the genuineness of the Will. Nothing could be elicited by the defendants during the cross-examination of the plaintiff or his witnesses on the basis of which it may be concluded that he had taken an active part in the execution of the Will. Even if it is assumed that he was present at that time, the same cannot be termed as suspicious circumstance. There was every reason for Chanan Singh to execute the Will in favour of the plaintiff and exclude his other brothers and sister. It has come out during the cross-examination of Baldev Singh PW1that deceased had been residing with the plaintiff during his life time and he was being provided with meals etc., by him. Thus this Will was the outcome of the love and affection of the testator for the plaintiff. It is also pertinent to note that this Will is a registered document. The registration of the Will is a strong circumstance in favour of the genuineness thereof. I do not find any ground to differ with the findings recorded by the first Appellate Court. There is no ground for upsetting those well reasoned findings. There is no merit in the appeal and the same is hereby dismissed. September15, 2010 (Gurdev Singh) tripti Judge