R. S. A. No. 1373 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1373 of 2011 Date of Decision : April 20, 2011 Sukhdev Singh .... Appellant Vs. Balwinder Kaur and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Hem Raj Kapil, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Sukhdev Singh – defendant no.1, who was successful in the trial court, but has been unsuccessful in the lower appellate court, has filed the instant second appeal. Respondent no.1 – plaintiff Balwinder Kaur filed suit against defendant no.1 – appellant and against proforma respondents no.2 to 16 as defendants no.2 to 16. Plaintiff's case is that Sucha Singh had four sons i.e. Gurdev Singh, Sukhdev Singh, Charan Singh and Jhagar Singh alias Jhagaru and a daughter namely Beebo. Plaintiff is widow of Gurdev Singh, who died about twenty years ago. The dispute relates to property of Jhagar R. S. A. No. 1373 of 2011 2 Singh alias Jhagaru, who was owner in possession of 11/90th share in land measuring 104 kanals 08 marlas. He was unmarried. His mother had also died. Plaintiff alleged that at the time of death of Smt. Indira Gandhi, Jhagaru went to Kolkata in a truck and never came back to the village and has not been heard of since then nor any letter has been received from him. He is presumed to have died. Plaintiff used to render services to him, whereas defendant no.1 Sukhdev Singh had thrown out Jhagaru from the house by beating him. Jhagaru executed registered Will dated 06.07.1982 in favour of the plaintiff. In view thereof, the plaintiff is owner in possession of the suit land, which was previously owned by Jhagaru. Defendants no.1 to 3, who are brothers and sister of Jhagar, have no concern with the suit land, but want to grab it. Accordingly, plaintiff sought declaration that Jhagaru is presumed to have died in the eyes of law and the plaintiff is owner in possession of the suit land and defendants no.1 to 3 have no concern therewith and plaintiff is entitled to get the suit land mutated in her favour. Ancillary relief of permanent injunction was also sought. Only defendants no.1 and 2 contested the suit, whereas remaining defendants were proceeded ex-parte. Defendants no.1 and 2 filed separate, but similar written statements. While admitting the relationship between the parties, other plaint allegations were broadly controverted. It R. S. A. No. 1373 of 2011 3 was denied that Jhagaru left for Kolkata at the time of death of Smt. Indira Gandhi and never came back or that he has not been heard of since then. Execution of the Will, as set up by the plaintiff, was also controverted. Various other pleas were also raised. Learned Civil Judge (Junior Division), Barnala, vide judgment and decree dated 06.08.2010, dismissed the plaintiff's suit. First appeal preferred by the plaintiff has, however, been allowed by learned Additional District Judge, Barnala, vide judgment and decree dated 06.01.2011 and thereby, suit filed by the plaintiff stands decreed. Feeling aggrieved, defendant no.1 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. As regards execution of the Will, plaintiff has examined both marginal witnesses of the Will as well as its scribe. They have proved due execution of the Will by Jhagaru. The Will is registered one. Registration of the Will further adds to the authenticity of the Will. Plaintiff also examined handwriting expert Navdeep Gupta (PW-8), who opined that signatures of Jhagaru on the impugned Will match with his standard signatures. The Will has also been thumb marked by Jhagaru and his thumb impressions on the Will also match with his standard thumb impressions. Science of comparison of finger-prints is a perfect science. There is practically no evidence to the contrary to rebut the evidence regarding R. S. A. No. 1373 of 2011 4 execution of the Will. Plaintiff has led cogent and reliable evidence to prove the Will. Learned counsel for the appellant contended that the plaintiff stated in her cross-examination that Jhagaru was not having sense of good or bad. It was accordingly contended that Jhagaru was not of sound mind and therefore, was not competent to execute the Will. The contention cannot be accepted. Witnesses of the Will have stated that Jhagaru was of sound mind at the time of Will. Moreover, the very fact that the Will was registered by Sub Registrar would also depict that Jhagaru was of sound disposing mind at the time of execution and registration of Will. If he had not been of sound disposing mind, the Will would not have been registered by the Sub Registrar. Moreover, it was not even pleaded by the defendants that Jhagaru was not of sound disposing mind. It is thus apparent that plaintiff has established her case regarding the Will in question. The next question that arises for determination in the lis is whether it is proved that Jhagaru had not been heard of for more than seven years before the filing of the suit and is, therefore, assumed to have died. This fact has also been established by the plaintiff by leading cogent evidence. In addition to the testimony of the plaintiff herself as PW-6, from the statements of Fail Khan (PW-3) and Binder Singh (PW-4) from the village, it is proved that Jhagaru has not been heard of for more than seven years and is missing for more than 21-22 years. On the other hand, there are R. S. A. No. 1373 of 2011 5 self-serving statements of defendants no.1 and 2 only. However, their statements, that Jhagaru visited the village and has been seen alive, have to be taken with a pinch of salt. They asserted that Jhagaru is residing at Hazoor Sahib and also used to talk with them on telephone. However, if Jhagaru is alive and his place of residence is also known to the defendants, it is not explained as to why Jhagaru was not produced in the Court to depict that he is very much alive. No telephone record has either been produced in this regard. No person from the village has either been examined to depict that Jhagaru has ever been seen by anybody after he allegedly went missing in October-November 1984. Statements of defendants no.1 and 2 were completely shattered in their cross-examination. Defendant no.2 – Beebo, while appearing as DW-1, stated that before filing the written statement, while the suit was pending, Jhagaru had come to the village on the occasion of festival of Diwali. However, she again stated that the suit was filed thereafter. She also stated that at the time of said visit of Jhagaru, he had met other relatives and villagers also. However, none of them has been examined as witness. Beebo even went to the extent of stating that she had disclosed to Jhagaru that the suit had been filed against him by the plaintiff, but even then, Jhagaru has not appeared in the witness- box. Similarly, Sukhdev Singh – defendant no.1, while appearing as DW-2, stated that Jhagaru met him on the festival of Diwali in the year 2006. Suit had been filed on 09.08.2006 i.e. before Diwali of the said year. In spite R. S. A. No. 1373 of 2011 6 thereof, no such plea was taken by defendants no.1 and 2 in the written statements that Jhagaru had visited the village on festival of Diwali in the year 2006. No witness has been examined to substantiate this version except defendants no.1 and 2 themselves. Moreover, Sukhdev Singh admitted in cross-examination that Jhagaru left the village 27-28 years ago. This admission substantiates the plaintiff's case. Learned counsel for the appellant referred to affidavit of examination-in-chief of the plaintiff and contended that in her affidavit dated 13.01.2009, she deposed that Jhagaru was not heard of for the last 7½ years, and therefore, period of 7 years before the filing of the suit had not elapsed. The contention is completely misconceived and lacks any substance. Plaintiff has specifically stated that Jhagaru left at the time of death of Smt. Indira Gandhi (which took place on 31.10.1984) and had not returned since then and was missing for the last 23-24 years. Consequently, it cannot be said that Jhagaru was not missing for more than 7 years before the filing of the suit. Learned counsel for the appellant next contended that according to the Section 107 of the Evidence Act (in short – the Act), if it is shown that a man was alive within 30 years, the burden of proving that he is dead is on the person, who affirms it. It was pointed out that in the instant case, Jhagaru was alive within 30 years preceding the filing of suit and therefore, burden was on the plaintiff to prove that he was dead. The R. S. A. No. 1373 of 2011 7 contention is again misconceived and devoid of merit. While advancing this contention, learned counsel for the appellant completely lost sight of the provisions of Section 108 of the Act, which is in the form of proviso or exception to the provision of Section 107 of the Act. Section 108 of the Act provides that if a man has not been heard of for seven years by those who would naturally have heard of him, if he had been alive, the burden of proving that he is alive is shifted to the person, who affirms it. In the instant case, the plaintiff has proved that Jhagaru was not heard of since after October 1984 i.e. for almost 22 years before the filing of the suit. Consequently, the burden was on the defendants to prove that Jhagaru is alive, but defendants have miserably failed to prove their case. For the reasons aforesaid, I find that plaintiff has successfully proved that Jhagaru was not heard of for almost 22 years before the filing of the suit and therefore, he is presumed to have died in the eyes of law. Finding of lower appellate court to this effect as well as regarding the Will does not suffer from any infirmity, much less illegality or perversity so as to warrant interference in exercise of second appellate jurisdiction. The said finding is based on proper appreciation of evidence and is supported by cogent reasons recorded by the lower appellate court. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is bereft of any merit and is accordingly dismissed in limine. R. S. A. No. 1373 of 2011 8 April 20, 2011 ( L. N. MITTAL ) monika JUDGE