IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 1680 of 2010 (O&M) Date of Decision: 29.4.2010 Gian Kaur and others. ....... Appellants. Versus Jaswinder Kaur @ Inderjit Kaur and others. ....... Respondents. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Shri Rajbir Wasu, Advocate for the appellants. .... 1. Whether Reporters of Local Newspapers 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? .... Mahesh Grover,J. C.M.No.5056-C of 2010 Allowed as prayed for. C.M.No.5057-C of 2010 The application is accepted and the delay of 85 days in refiling of the appeal is condoned. R.S.A.No.1680 of 2010 and C.M.No.5058-C of 2010 This Regular Second Appeal is directed against judgments and decrees dated 20.7.2005 and 15.9.2009 passed respectively by the Civil Judge (Junior Division), Phagwara (hereinafter described as `the trial R.S.A.No.1680 of 2010 (O&M) -2- .... Court') and the Additional District Judge, Kapurthala (referred to hereinafter as `the first appellate Court'). C.M.No.5058-C of 2010 has been moved for staying the operation of the impugned judgments during the pendency of the appeal. Plaintiff-respondent no.1, Jaswinder Kaur @ Inderjit Kaur, filed a suit for declaration and permanent injunction laying a claim to the estate of late Shri Santokh Singh. She pleaded that Santokh Singh was owner of the suit property and he expired on 22.6.2000; that he was survived by his sons, who were impleaded as defendant nos. 1 to 4, and daughters, who are plaintiff and defendant no.5; that after the death of Santokh Singh, the plaintiff and defendants had inherited the suit property to the extent of 1/6th share each as per the law of succession; that the defendants had no right, title or interest in the suit property beyond their shares; that defendant nos. 1 to 4 have started claiming that they were owners in possession of the entire suit property and have also threatened to alienate the same denying the title of the plaintiff to the extent of 1/6th share and hence, the suit. Upon notice, all the defendants appeared and filed their joint written statement contesting the claim of the plaintiff. It was admitted that the suit property belonged to Santokh Singh, who died on 22.6.2000, but denied that the plaintiff had 1/6th share in the same. They set up a Will dated 17.12.1998 by which the entire property was bequeathed by Santokh Singh in their favour. They pleaded that the suit property was in their possession on that basis. R.S.A.No.1680 of 2010 (O&M) -3- .... As many as five issues were framed by the trial Court on the basis of the pleadings of the parties, out of which issue nos. 1 and 4-A are the relevant ones which are reproduced below:- 1. Whether plaintiff is entitled to decree for declaration as prayed for?OPP 4-A Whether Santokh Singh had executed Will dated 17.12.1998 as alleged? If so, its effect?OPD After appraisal of the entire evidence on record, the trial Court held that the Will set up by the defendants was not proved and, therefore, decreed the suit holding the plaintiff entitled to 1/16th share in the suit property. Four of the defendants, namely, Mohan Singh, Tara Singh, Satnam Singh and Gian Kaur preferred an appeal against the judgment and decree of the trial Court which was dismissed by the first appellate Court which has resulted in the filing of the instant appeal. Learned counsel for the appellants has contended that the Will was duly proved and being a registered document, it had attracted a presumption of truth. He further contended that Sub Registrar himself had appeared and testified to the correctness of the Will and, therefore, according to the provisions of Section 69 of the Evidence Act,1872, the onus to prove the Will stood adequately discharged. I have thoughtfully considered the contention of the learned counsel for the appellants and have perused the impugned judgments. The execution of the Will was not established from any R.S.A.No.1680 of 2010 (O&M) -4- .... material on record. The attesting witnesses were available, even though they were living abroad, but none of them was examined in support of the Will. The plea of the appellants that the Will had been proved according to the record of the Sub Registrar is also not acceptable as it is not the case that Sub Registrar was herself present at the time of execution of the Will. DW5-Balraj Kaur, the then Sub Registrar, Phagwara had marked the Will dated 17.12.1998 in her statement, but in her cross-examination,m she admitted that she did not know testator-Santokh Singh or the attesting witnesses. Thus, the Will was never exhibited and proved in accordance with law. DW2-Ashok Kumar, Deed Writer was produced to say that he is attesting witness, but unfortunately the claim is incorrect because he is a scribe and cannot be construed to be an attesting witness to the document and even otherwise, his testimony is not worthy of credence for the reason that he did not know the testator-Santokh Singh. The appellants had moved an application under Order 41 Rule 27 of the C.P.C. and opportunity was granted to them by allowing the same to produce the alleged attesting witnesses, but they failed to do so. In this eventuality, when the Will was never exhibited nor proved in accordance with law, I am of the opinion that the same was rightly discarded by the Courts below. The Supreme Court in Rur Singh (dead) through L.Rs. and others Versus Bachan Kaur, (2009) 11 S.C.C. 1, has held that the determination of the validity of a Will is a question of fact and no substantial question of law is involved therein. R.S.A.No.1680 of 2010 (O&M) -5- .... The learned counsel for the appellants has relied upon the following judgments of this Court in support of the case of the appellants:- 1. Jarnail Singh Versus Narain Singh & others , 1984 CLJ (C& Cr) 148 (P&H); 2. Mohinder Kaur Versus Harbhajan Singh, 2002(1) R.C.r. (Civil ) 134 (P&H); and 3. Babu Singh and others Versus Ram Sahai @ Ram Singh, 2006(2) R.C.R. (Civil) 140 (P&H). I have gone through the aforementioned judgments and am of the opinion that none of them comes to the rescue of the appellants for the reasons recorded above. To sum up, it can be said that the said judgments do not apply to the facts of the instant case for the reason that the Will was never proved in accordance with law. The testimony of the scribe and the Sub Registrar was rightly discarded as neither of them knew the testator. The Will was not even executed in the presence of the Sub Registrar. Had the Sub Registrar stated that the Will was executed in her presence, then it might have satisfied the requirement of an attesting witness,but the fact remains that the Will was not executed in her presence. On the basis of the above discussion, it is concluded that the impugned judgments are perfectly in order and no interference is called for. Accordingly, this appeal is dismissed being devoid of any merit. April 29,2010 ( Mahesh Grover ) “SCM” Judge