Regular Second Appeal No. 4786 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 4786 of 2010 Date of decision : December 14, 2010 Bhajan Kaur ....Appellant versus Harjit Kaur and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Navjot Singh Wahniwal, Advocate, for the appellant L.N. Mittal, J. (Oral) Defendant Bhajan Kaur having remained successful in the trial court but having remained unsuccessful in the lower appellate court is in second appeal. Respondents/plaintiffs who are widow and two minor sons of Kulwinder Singh son of Bhajan Singh son of Sardool Singh filed suit against defendant-appellant Bhajan Kaur. The plaintiffs alleged that Sardool Singh was owner of the suit land. He bequeathed the same in favour of his son Bhajan Singh vide Will dated 20.1.1989. Accordingly, Bhajan Singh inherited the suit land and became owner in possession thereof. Bhajan Singh had three sons Kulwinder Singh, Balwinder Singh and Sukhwinder Singh but all of them have died. Plaintiffs were rendering Regular Second Appeal No. 4786 of 2010 -2- services to Bhajan Singh. Bhajan Singh executed Will dated 24.9.2002 in favour of the plaintiffs and accordingly plaintiffs have become owners in possession of the suit land on the death of Bhajan Singh. Defendant has no right, title or interest in the suit land but she threatened to dispossess the plaintiffs therefrom. Plaintiffs accordingly sought declaration that they are owners in possession of the suit land. Plaintiffs also claimed permanent injunction. Defendant controverted the plaint allegations. Execution of Will dated 20.1.1989 by Sardool Singh in favour of Bhajan Singh was denied. It was alleged that said Will is false and fabricated. Defendant was looking after Sardool Singh. Mutation no. 3453 was entered in favour of Bhajan Singh on the basis of aforesaid Will but the mutation was ultimately sanctioned in favour of both Bhajan Singh and defendant Bhajan Kaur in equal shares . Defendant is co-sharer in the suit land to the extent of half share and is in joint possession thereof. Will dated 20.1.1989 is surrounded by suspicious circumstances and was never executed by Sardool Singh. Various other pleas were also raised. Learned Civil Judge (Junior Division), Moga vide judgment and decree dated 11.11.2009 dismissed plaintiffs' suit. However, first appeal preferred by the plaintiffs has been allowed by the learned Additional District Judge, Moga vide judgment and decree dated 19.10.2010 and thereby suit filed by the plaintiffs stands decreed. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Regular Second Appeal No. 4786 of 2010 -3- The central controversy in the case is regarding execution of Will dated 20.1.1989 by Sardool Sigh in favour of Bhajan Singh. To prove the same plaintiffs have examined Mukhtiar Singh PW1, a marginal witness of the said Will. He has supported the case of the plaintiffs. Harjit Kaur plaintiff no. 1 herself appeared as PW2 and stated according to her own version. Tasveer Singh PW3 is scribe of the aforesaid Will. He has also proved its execution by Sardool Singh. He also proved its entry in his register. Gurmej Singh PW4 identified signatures of Tirlok Singh Sarpanch other attesting witness of the Will (since deceased). On the other hand, defendant Bhajan Kaur appeared as DW1 and stated about her version. Bhola Ram DW2 claimed himself to be brother-in-law of Sardool Singh and stated that Sardool Singh was aged 80/85 years at the time of death and he was not in sound disposing mind and he never executed any Will. The plaintiffs led whatever evidence was possible to prove execution of the Will. They have examined scribe of the Will and one marginal witness of the Will whereas other marginal witness of the Will has since died. However, plaintiffs have examined Gurmej Singh PW4 to prove the signatures of the other attesting witness on the Will as the other attesting witness had died. Thus all possible evidence has been led by the plaintiffs to prove the Will. On the contrary, statements of Bhajan Kaur defendant and her witness Bhola Ram cannot prove that the Will was not executed by Sardool Singh because they were not present when the Will was executed. Statement of Bhola Ram that Sardool Singh was not in sound disposing mind at the time of his death does not help the defendant Regular Second Appeal No. 4786 of 2010 -4- because the Will was executed more than six years before the death of Sardool Singh. Learned counsel for the appellant vehemently contended that the Will is surrounded by suspicious circumstances. It was pointed out that Sardool Singh died in July, 1995 but the mutation on the basis of Will was entered seven years thereafter and thus, the Will was produced belatedly. The contention cannot be accepted. Even inheritance mutation of Sardool Singh on the basis of natural succession was not entered in the meanwhile. On the contrary, the mutation was entered on the basis of the aforesaid Will. The said mutation was entered before the filing of the instant suit. Consequently, it cannot be said that there was delay in production of the Will. Even defendant herself did not get entered any mutation prior to it on the basis of natural inheritance. Thus, it cannot be said that there has been any abnormal delay in production of the Will creating any suspicion about the genuineness of the Will. Learned counsel for the appellant emphatically contended that beneficiary Bhajan Singh himself was present at the time of execution of the Will and this is a very serious suspicious circumstance about the Will. This contention although apparently attractive also cannot be accepted. Tasveer Singh PW3 who scribed the aforesaid Will stated in his cross-examination about presence of Bhajan Singh at the time of execution of the Will. However, said statement of Tasveer Singh has to be taken with a pinch of salt. Tasveer Singh did not know the parties personally. His statement was recorded more than 14 years after he had scribed the Will because the suit itself was instituted on 27.3.2003 i.e. more than 14 years after Regular Second Appeal No. 4786 of 2010 -5- execution of Will dated 20.1.1989. Tasveer Singh as Document Writer scribes numerous documents daily. After lapse of more than 14 years he could not be expected to remember that Bhajan Singh beneficiary was also present when the Will was scribed by him. In this context it has to be noticed that presence of Bhajan Singh has not been mentioned in the Will nor the Will has been signed by Bhajan Singh. Consequently, testimony of Tasveer Singh scribe that Bhajan Singh was also present at the time of execution of the Will cannot be accepted. The said statement has apparently been made by Tasveer Singh at the instance of defendant- appellant. Learned counsel for the appellant contended that even Mukhtiar Singh PW1 stated that Bhajan Singh had accompanied them to the scribe and was present when the Will was written but Mukhtiar Singh stated again that Bhajan Singh had left for market before the Will was scribed. Thus, from the testimony of Mukhtiar Singh it cannot be said that Bhajan Singh was present when the Will was scribed. It may also be added that mere presence of Bhajan Singh beneficiary at the time of execution of the Will would not by itself, without anything more, be sufficient to discard the Will which has otherwise been duly proved by cogent and reliable evidence led by the plaintiffs. Statements of Mukhtiar Singh and Tasveer Singh regarding due execution of the Will could not be impeached in their cross- examination. It may also be added that Bhajan Singh was the only son of testator Sardool Singh. Defendant is daughter of Sardool Singh. It is not uncommon in this part of the country that agriculturists have tendency to pass on their property in favour of their male lineal descendants and in the absence of male descendants even in favour of male collaterals in Regular Second Appeal No. 4786 of 2010 -6- preference to daughters so as to keep the property within the family. In the instant case execution of Will by Sardool Singh in favour of his only son Bhajan Singh was quite natural and the Will cannot be said to be suspicious in any manner. Learned counsel for the appellant also contended that it has come in evidence that rough draft of the Will was also prepared but the same has not been produced. However, rough draft of the Will was not required to be preserved or produced when fair draft of the Will was prepared and executed. Apparently rough draft of the Will would not have been preserved after execution of fair draft of the Will. In ordinary course rough draft is destroyed after fair draft is prepared. Learned counsel for the appellant also argued that Mukhtiar Singh PW1 stated that he had also signed the Will in addition to thumb marking the same but in fact the Will bears only thumb impression and not signature of the witness. This circumstance does not make the testimony of Mukhtiar Singh unreliable. The said witness appeared in the witness box more than 14 years of the execution of the Will and consequently such minor discrepancy would not be sufficient to discard his testimony. Lower appellate court has analyzed the evidence in proper prospective and has come to definite finding regarding due execution of the aforesaid Will. The said finding is not shown to be perverse or illegal in any manner. The Will has been duly proved by the plaintiffs by leading cogent and trust-worthy evidence. There is no suspicious circumstance about the said Will. So-called suspicious circumstances advanced by learned counsel for the appellant are in fact no suspicious circumstances. Lower appellate court is final court of fact. No question of law much less Regular Second Appeal No. 4786 of 2010 -7- substantial question of law arises for determination in the instant second appeal. The appeal lacks any merit and is accordingly dismissed in limine. ( L.N. Mittal ) December 14, 2010 Judge 'dalbir'