Regular Second Appeal No. 4292 of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 4292 of 2003 Date of Order: 30th October, 2009 Dayal Singh (deceased) though his legal representatives. ....Appellants Versus Kashmir Kaur and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Arun Jain, Senior Advocate with Mr. Amit Jain, Advocate for the appellant. Mr. Anupam Bharadwaj, Advocate for the respondents. RAJIVE BHALLA, J. The appellant challenges the judgment and decree dated 02.08.2003, passed by the Additional District Judge (Adhoc), Amritsar, accepting the appeal filed by the respondents, setting aside the judgment and decree dated 22.11.2000, passed by the Additional Civil Judge (Sr. Division), Tarn Taran and as a consequence decreeing the suit filed by the respondents. Gurdial Singh, since deceased, filed a suit for possession by pleading that as Pal Singh, his father's brother, has died issueless and unmarried, he has inherited his property. Dayal Singh defendant no.1 has however, forcibly occupied the suit land by alleging that he has inherited the property of Pal Singh on the basis of a will. It was further pleaded that Dayal Singh has mortgaged the suit land with defendants no.2 and 3 by alleging that the mutation of inheritance has been sanctioned in his favour. Dayal Singh, defendant no.1/appellant,since deceased, and now Regular Second Appeal No. 4292 of 2003 -2- represented by his legal representatives, filed a written statement denying the averments in the plaint and pleaded that before his demise Pal Singh had executed a Will dated 03.07.1981 bequeathing his property to him. It was further pleaded that the will dated 03.07.1981 has been held to be valid by the revenue authorities, after due contest and a will dated 05.08.1981 set up by the plaintiff has been rejected. It was also pleaded that he has constructed his house and installed a tubewell in the suit land. On the basis of the pleadings, the trial court framed the following issues:- “1. Whether the plaintiff is the legal heir of Pal Singh and is entitled to succeed his estate?OPP 2. Whether the possession of defendant no.1 over the suit land is illegal?OPP 3. Whether the plaintiff is entitled to the possession of the suit land?OPP 4. whether Pal Singh has executed a will dated 3.7.81 in favour of defendant?OPD 5. Whether the plaintiff is estopped by his act and conduct to file the present suit?OPD 6. whether the suit is within time?OPD 7. Whether the suit is bad for non joinder of necessary parties?OPD 8. Whether the plaintiff has no locus standi to file the present suit?OPD 9. Whether the defendant no.1 has raised construction over the suit land, if so, its effect?OPD 10. Whether deceased Pal Singh has executed a will dated 5.8.1981 in favour of the plaintiff ?OPP 11. Relief.” Regular Second Appeal No. 4292 of 2003 -3- After considering the pleadings, the evidence adduced and the arguments addressed, the trial court dismissed the suit by holding that the will dated 03.07.1981, executed in favour of Dayal Singh stands proved by the deposition of the scribe and an attesting witness. It was further held that as the plaintiff/respondent has failed to 'disprove' the execution of the Will or to establish any suspicious circumstances, minor discrepancies in the testimonies of the scribe and the attesting witness are insufficient to discard the Will. It was also held that the Will was natural and even otherwise Gurdial Singh had admitted the Will, in the document Ex.D1. The trial court further held that the respondent had failed to prove that he was a preferential heir, entitled to succeed to the property of the deceased. Aggrieved by the aforementioned judgment and decree, plaintiff/respondent filed an appeal. Vide judgment and decree dated 02.08.2003, the first appellate court accepted the appeal, set aside the judgment and decree dated 22.11.2000 and decreed the suit. The first appellate court discarded the Will dated 03.07.1981 by holding that the sole attesting witness examined by the appellant, has failed to depose that the testator affixed his thumb impression on the Will, in the presence of the attesting witnesses or that the attesting witnesses attested the Will in the presence of the testator. The deposition of the scribe was discarded as his register contained loose papers and the entries and the serial numbers were crossed over and overwritten. As regards relationship with the testator, it was held that Gurdial Singh was his closest surviving relative. It was also held that the appellant had failed to prove that the document Ex.D1 bears the thumb impression of Gurdial Singh and, therefore, the trial court could not have held that Gurdial Singh had admitted the execution of the Will. The first appellate court noticed a significant fact that the sons of Dayal Singh had filed a suit against the testator, during his life time and, therefore, concluded that there was no Regular Second Appeal No. 4292 of 2003 -4- reason for the testator to have executed the will in favour of Dayal Singh. Counsel for the appellants submits that the first appellate court has committed a fundamental error of law, while discarding the Will and holding that it has not been proved. It is submitted that the deposition of the scribe and the attesting witnesses clearly proves that the will was penned by the scribe on the instructions of the testator and thereafter the testator appended his thumb impression in the presence of the scribe and the attesting witnesses. The attesting witnesses thereafter appended their signatures, in the presence of the testator. It is argued that minor discrepancies or errors in the deposition of the attesting witness, do not negate his entire deposition. Ex.D1 is a document that bears the thumb impression of Gurdial Singh and, therefore, an admission of the execution of the Will. It is further argued that the suit is barred by time as it was filed ten years after the death of the testator. Even otherwise, as revenue authorities have upheld the execution of the Will, there was no reason for the first appellate court to have accepted the appeal. It is submitted that in view of the errors committed by the first appellate court, the following substantial questions of law framed by counsel for the appellant arise for adjudication:- 1. Whether in the facts and circumstances of the instant case the findings recorded by the learned Ist Appellate Court while reversing the well reasoned and well considered judgment and decree of the learned trial court on the point of due execution and validity of the will dated 3.7.1981 in favour of the appellant canot be sustained in law? 2. Whether in the facts and circumstances of the instant case the learned Ist Appellate Court has erred in law in mis-reading and mis-interpretting the affirmative Regular Second Appeal No. 4292 of 2003 -5- evidence led by the appellant to which there was no rebuttal showing the due validity of the will in consonance with the Section 68 of the Indian Succession Act? 3. Whether in the facts and circumstances of the instant case the suit filed by the plaintiff/respondent, who has not been proved to be the heir of Pal Singh, could be decreed? 4. Whether the alleged suspicious circumstances assumed by the Ist Appellate Court can be said to be sufficient to ignore the will dated 3.7.1981 in favour of the defendant/appellant which has been, otherwise, proved to have been duly executed by Pal Singh? Counsel for the respondents, on the other hand, submits that the first appellate court has rightly held that the appellant has failed to prove the execution of the will. It is submitted that the only attesting witness examined by the appellant has failed to depose that the attesting witnesses appended their signatures in the presence of the testator. It is argued that the deposition of the scribe was rightly rejected as his register is replete with cuttings, overwritings and even otherwise contains loose sheets and blank papers. The document Ex.D1 was rightly rejected as the appellant failed to prove that it was thumb marked by Gurdial Singh. It is argued that as no question of law much less a substantial question of law arises for consideration, the appeal be dismissed. I have heard counsel for the appellants, perused the impugned judgment, appraised the so called substantial questions of law and express my inability to hold that the judgment and decree passed by the first appellate court suffer from any error of law as would raise a substantial question of law. Regular Second Appeal No. 4292 of 2003 -6- The trial court has held that the execution of the will dated 03.07.1981 stands proved whereas the first appellate court has held to the contrary. The question, therefore, that arises for adjudication is whether the first appellate court has committed any error of law while holding that the execution of the will has not proved. The Will dated 03.07.1981, was allegedly, scribed by Achar Singh, a deed writer and attested as witnesses by Satpal and Arjan Singh Lambardar. The appellant, examined the scribe as DW7 and Satpal the attesting witness as DW3. The first appellate court has rejected these depositions by holding that they do not prove the execution of the Will. In order to place the conclusions recorded by the first appellate court in their correct perspective, it would be appropriate to refer to the strange deposition of the attesting witness DW3 Satpal:- “I have seen Will dated 3.7.81. It was scribed by me at the instance of Pal Singh in favour of defdt. Dial Singh. It was read over and explained by me to the executant, who in token of its correctness, put his thumb impression in token of its correctness. Lambardar Arjan Singh was also present at the time of execution of will and he put his signatures.” A perusal of the above extract reveals that DW3, commenced his statement by deposing that he had scribed the Will at the instance of Pal Singh deceased and after it was read out to Pal Singh, the latter affixed his thumb impression, in token of its correctness. It is no part of the appellant's case that the will was scribed by DW3 Sat Pal. However in the later part of his deposition DW3 deposed as follows:- “Again said the will was scribed by Achhar Singh, Deed writer and I attested it as marginal witness, with Arjan Singh Lambardar. Original is Ex.D2 in the summoned Regular Second Appeal No. 4292 of 2003 -7- file. It bears my signatures. At that time, Pal Singh was in sound disposing mind.” Apart from the strange contradiction in his deposition DW3, the attesting witness has failed to depose that he and the other attesting witness appended their signatures in the presence of the testator or that the testator affixed his thumb impression in their presence as required by Section 63 (c) of The Indian Succession Act, 1925 (hereinafter referred to as the Act). Section 63 of the Act sets out the mode and manner for the execution and attestation of a Will, and reads as follows:- 63(c) :- The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary.” A Will, therefore, has to be executed and attested in accordance with the procedure prescribed by Section 63(c) of the Act and when produced before a court has to be proved in accordance with the provisions of Section 68 of the Indian Evidence Act. The propounder of the Will, in addition to other factors, is required to prove, by the deposition of at least one attesting witness that the testator appended his signature or affixed his mark on the Will in the presence of the attesting witnesses and that the attesting witnesses signed the Will in the presence of the testator. It Regular Second Appeal No. 4292 of 2003 -8- would be necessary to emphasise that the onus to prove the execution of the Will lies upon the propounder of a Will. The deposition of DW3 Satpal, the only attesting witness examined by the appellants, does not satisfy the ingredients of the execution and attestation of a valid Will, as set out in Section 63(c) of the Indian Succession Act, 1925. As regards the deposition of the scribe Achhar Singh, DW7, the less said the better. In his cross examination he admitted that his register contains numerous cuttings, overwritings and loose sheets. His deposition was, therefore, rightly rejected by the first appellate court. Reliance by counsel for the appellants upon a judgment reported as 1996 (9) Supreme Court Cases, page 325 Joyce Primrose Prestor (Mrs.) (Nee Vas) v Vera Marie Vas (Ms) and others is entirely misplaced. Apart from the fact that the factual matrix of this case is different, the observations that a presumption attaches to a Will that it has been validly executed, applies where a Will, has been executed in accordance with the provisions of Section 63 of the Indian Succession Act. It would also be necessary to mention that the Hon'ble Supreme Court was dealing with a “holograph Will.” The alleged admission of the Will in the document Ex.D1 was rightly rejected by the first appellate court. It is not denied that when Ex.D1 was allegedly executed when litigation was pending between the parties. Consequently, there was no reason for Gurdial Singh to have witnessed the document Ex.D1. Even otherwise the appellants have failed to prove that Ex.D1 bears the thumb impression of Gurdial Singh. The scribe produced to prove the execution of Ex.D1 conceded that his register was replete with cuttings, overwritings, missing serial numbers and pages. Another factor that weighed with the first appellate court while discarding the Will is that the sons of deceased appellant filed a suit for permanent injunction to restrain the testator from interfering in their possession over Regular Second Appeal No. 4292 of 2003 -9- the land. It would require mention that Pal Singh deceased was residing with Gurdial Singh, as established by the voter identity card and the admission by the appellant's witnesses. The first appellate court, therefore, did not commit any error while rejecting the Will dated 03.07.1981. As regards the so called substantial questions of law, the first appellate court has considered the deposition of the attesting witness, the scribe, the provisions of Section 63 of the Succession Act and only after a careful appraisal of their deposition, recorded an opinion that the Will has not been proved. The onus to prove the execution of the will and dispel all suspicious circumstances lay upon the appellants. The respondents could not be expected to prove the negative i.e. disprove the Will and therefore, whether the respondents produced any evidence to rebut the execution of the Will or not is irrelevant. The question that Gurdial Singh has not proved that he is the heir of Pal Singh is factually incorrect. It has been proved by evidence on record that Pal Singh was a close relative of the testator than the appellants. The last question relates to the suspicious circumstances referred to by the first appellate court. I find no reason to hold that the suspicious circumstances referred to by the first appellate court are insufficient or irrelevant to reject the execution of the Will. In view of what has been stated hereinabove, as the judgment and decree passed by the first appellate court does not suffer from any error of law, the appeal is dismissed, with no order as to costs. October 30, 2009 (RAJIVE BHALLA) nt JUDGE