RSA No.2393 of 2011 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2393 of 2011 (O & M) Date of Decision: 27.05.2011 Harpal Kaur ……Appellant Versus Raj Joginder Singh and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Jagjit Gill, Advocate for the appellant. L.N. MITTAL, J (ORAL) CM No.6625-C of 2011 Allowed as prayed for. CM No.6626-C of 2011 For reasons mentioned in the application which is accompanied by affidavit, delay of 36 days in re-filing the appeal is condoned. Main Appeal. Plaintiff-Harpal Kaur, having been non-suited by both the Courts below, has come up by way of instant second appeal. Plaintiff-appellant filed suit seeking declaration that she is owner in possession of the suit land in view of Will dated 10.11.1980 executed by her father-in-law Bakhtawar Singh, who died on 01.11.1985. Defendant No.1 is husband of the plaintiff-appellant and RSA No.2393 of 2011 (O & M) - 2 - is son of deceased Bakhtawar Singh. However, inheritance mutation of the deceased was sanctioned in favour of his widow Bhagwan Kaur and defendant Nos.1 to 3 and Gurdev Kaur mother of defendant Nos.4 to 6 i.e. on the basis of natural inheritance. Defendants failed to defend the suit and were proceeded ex parte. Learned Additional Civil Judge (Senior Division), Dabwali vide judgment and decree dated 22.10.2008 dismissed the plaintiff’s suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Sirsa vide judgment and decree dated 14.01.2011. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Plaintiff has been rightly non-suited by the Courts below for various reasons. The will is completely unreliable and has been rightly discarded by the Courts below. Lower appellate Court has recorded so many reasons in detail to discard the said Will. At the outset, it has to be noticed that under Section 63 of the Indian Succession Act, 1925, the Will is required to be attested by at least two witnesses. Consequently, in view of Section 68 of the Evidence Act (in short, the Act), at least one attesting witness has to be examined to prove the Will. However, none of the attesting witnesses of the Will has been examined by the plaintiff on the plea that both attesting witnesses of the Will had since died. Takdirjit Singh PW-2 is son of Balwant Singh an attesting witness of the Will. RSA No.2393 of 2011 (O & M) - 3 - He made oral statement that both attesting witnesses of the Will i.e. Balwant Singh and Surjit Singh had since died. He also identified the signatures of his father Balwant Singh attesting witness of the Will. However, no documentary evidence was placed on record to depict that both attesting witnesses of the Will had since died. Oral statement of Takdirjit Singh in this regard was held to be insufficient. To fill the aforesaid lacuna, plaintiff filed application for additional evidence in first appeal to place on record death certificates of Balwant Singh and Surjit Singh. The said application has been dismissed by the lower appellate Court. However, even if the said application is allowed, it would not serve the required purpose because even then the Will cannot be held to be proved. Section 69 of the Act stipulates that if no such attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting and also that the signature of the person executing the document is in the handwriting of that person. Even if it is assumed that both attesting witnesses of the Will had since died, only first part of Section 69 of the Act would be satisfied by the testimony of Takdirjit Singh PW-2, who proved the signatures of his father Balwant Singh an attesting witness of the Will. However, nevertheless, second requirement of Section 69 of the Act has not been satisfied by the plaintiff. It has not been proved that the Will has been signed or thumb-marked by the testator Bakhtawar Singh. To overcome this lacuna, learned counsel for the appellant contended that Tej Bhan, Deed Writer PW-3, who scribed RSA No.2393 of 2011 (O & M) - 4 - the Will, has stated that the Will was signed/thumb-marked by the testator Bakhtawar Singh. The contention although attractive on first blush cannot be accepted to meet the aforesaid mandatory requirement of Section 69 of the Act. Tej Bhan did not state that he personally knew the testator Bakhtawar Singh. Consequently, from the testimony of Tej Bhan scribe, it cannot be said that it was Bakhtawar Singh testator and not anybody else, who had signed the aforesaid Will as its executant. Thus essential requirement of Section 69 of the Act that signature of the testator should be proved on the Will to be in the handwriting of the testator has not been complied with. There are large number of other infirmities and suspicious circumstances about the Will. Balwant Singh died on 01.11.1985. His inheritance mutation was sanctioned on 03.06.1991 in favour of widow of Bakhtawar Singh and defendants No.1 to 3 and predecessor of defendant Nos.4 to 6. The instant suit was filed on 19.10.2004 i.e. 19 years after the death of Bakhtawar Singh and more than 13 years after the sanctioning of inheritance mutation. To overcome this difficulty, the plaintiff came out with a very novel and strange version that the testator had given the Will to Balwant Singh for safe custody and Balwant Singh’s son Takdirjit Singh gave the Will to the plaintiff in or about September, 2004 i.e. about a month before the filing of the suit and only then the plaintiff learnt of the aforesaid Will. This version of the plaintiff has to be taken with a pinch of salt. Firstly, there was no occasion for giving the Will to RSA No.2393 of 2011 (O & M) - 5 - Balwant Singh for safe custody particularly because Balwant Singh admittedly belonged to a different village and did not even belong to the village of the testator. Secondly, according to plaintiff’s version, Balwant Singh was instructed by the testator to handover the Will to the plaintiff after the death of the testator. However, although Balwant Singh remained alive for four years after the death of the testator, yet Balwant Singh did not handover the Will to the plaintiff during this period. Takdirjit Singh PW-2 has come with a strange version that his father Balwant Singh had told him that the Will was executed by Bakhtawar Singh in favour of the plaintiff and was to be handedover to the plaintiff after the death of Bakhtawar Singh and, therefore, Takdirjit Singh gave the Will to the plaintiff. However, it is not explained by either plaintiff or Takdirjit Singh as to why the Will was not handedover to the plaintiff immediately after the death of testator Bakhtawar Singh and why it was suddenly handed over to the plaintiff after 19 years of the death of testator. It is also significant to notice that before the Will allegedly saw the light of the day in or about September, 2004, the plaintiff admittedly had no concern with the suit land. The plaintiff was not even aware of the alleged Will and without the said Will, the plaintiff had no right, title or interest in the suit land. Nevertheless, the plaintiff claimed herself to be in possession of the suit land. The question of the plaintiff being in possession of the suit land did not arise when she had no concern whatsoever with the suit land. On the other hand, Class I natural heirs of the deceased Bakhtawar Singh were alive and inherited the RSA No.2393 of 2011 (O & M) - 6 - suit land and obviously they were owners in possession of the suit land as also depicted by the revenue entries. The plaintiff, however, has not claimed the relief of possession of the suit land. The testimony of scribe Tej Bhan PW-3 has also been found doubtful by the lower appellate Court and rightly so because the Will does not even purport to have been signed by him as its scribe. The Will purports to bear stamp of the scribe and the same is also without any date. Defendant No.1 is husband of the plaintiff-appellant. Inheritance mutation of Bakhtawar Singh was sanctioned in favour of defendant No.1 also along with others. However, the plaintiff for the first time staked claim in the suit land after 19 years of the death of Bakhtawar Singh. It is also surprising that although Surjit Singh, the other attesting witness of the Will, allegedly died on 09.05.2004 i.e. almost 19 years after the death of the testator, but even Surjit Singh did not care to inform the plaintiff about the alleged Will during said long period. It may also be added that according to the plaintiff, the Will was given to her by Takdirjit Singh about a month prior to the filing of the suit i.e. in or about September, 2004, but Takdirjit Singh stated that he had given the Will to the plaintiff about one year prior to the filing of the suit i.e. in or about October, 2003. Even registration record of the Will has not been produced to depict the genuineness of the Will. RSA No.2393 of 2011 (O & M) - 7 - In addition to the aforesaid, learned lower appellate Court has also recorded many more reasons to discard the Will. It is thus manifest that the Will has been rightly discarded and the alleged Will has not been proved in accordance with law. The same is surrounded by so many suspicious circumstances which have not been explained or removed by the plaintiff. Concurrent finding recorded by the Courts below to non-suit the plaintiff is justified by the evidence on record and does not suffer from any illegality or perversity nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not call for interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is meritless and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 27.05.2011. A.kaundal