-1- Regular Second Appeal No. 2639 of 2008 (O&M). IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: January 25, 2011. Regular Second Appeal No. 2639 of 2008 (O&M). Rakesh and others ... Appellants VERSUS Smt. Neelam Rani and others ... Respondents CORAM : HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers 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 ? Present: Mr. B.S. Bedi, Advocate, for the appellants. Mr. N.P.S. Mann, Advocate, for respondents Nos. 1 to 4 and 7. -.- MOHINDER PAL, J. Defendants-appellants are in second appeal aggrieved against the judgments and decrees passed by the Courts below, whereby the suit filed by the plaintiffs-respondents against the defendants-appellants challenging the Will dated -2- Regular Second Appeal No. 2639 of 2008 (O&M). 16.8.1998 allegedly executed by Smt. Sheela Devi in favour of defendants Nos. 1 to 5 being illegal, null and void and with consequential relief of permanent injunction was decreed. I have heard Mr. B.S. Bedi, Advocate, appearing for the appellants and Mr. N.P.S. Mann, Advocate, appearing for respondents Nos. 1 to 4 and 7 and have gone through the records. The dispute in this case is with regard to the property left by Diwan Chand. Plaintiffs-respondents are the daughters of Diwan Chand. Diwan Chand had five daughters i.e plaintiffs- respondents and defendant Smt. Subhash Rani and two sons, namely, defendants Sham Lal and Satish. Sham Lal has since died. The appellants before this Court are the legal representatives of Satish and Sham Lal whereas Satish and Smt. Subhash Rani have been arrayed as proforma-respondents. Smt. Sheela Devi was the wife of Diwan Chand. The collusive decree allegedly suffered by Diwan Chand in favour of Smt.Sheela Devi transferring his land to her to the extent of 1/3 share had been challenged by the plaintiffs by way of filing another suit. The case of the plaintiffs is that both Smt. Sheela Devi and Diwan Chand died intestate. The Will dated 16.8.1998 allegedly executed by Sheela Devi was a bogus Will prepared by the defendants with a view to grab the share of Smt.Sheela Devi, who had never expressed her desire to execute any Will. Actually, she never executed any Will. In this Will, thumb impressions of Smt. Sheela Devi are shown to have been -3- Regular Second Appeal No. 2639 of 2008 (O&M). affixed whereas she never thumb marked any document. She had passed the 8th Standard examination and was capable of signing the documents. Her Bank Account also bears her signatures. Further, the land at the hands of Smt.Sheela Devi was ancestral which her husband, namely, Diwan Chand had inherited from his forefathers. The plaintiffs had also challenged the Mutation being sanctioned on the basis of the Said Will before the revenue authorities. The case of the defendants is that Smt.Sheela Devi had become owner in possession of 1/3rd share of land, once owned by Diwan Chand, by way of civil Court decree dated 2.7.1991. Before her death, she had validly executed a Will in favour of defendants Nos. 1 to 5 and at that time she was of sound disposing mind. The trial Court, after framing issues and recording evidence of both the parties, decreed the suit of the plaintiffs- respondents. The judgment and decree passed by the trial Court were upheld in appeal preferred by the defendants before the lower appellate Court. Admittedly, Will dated 16.8.1998 is not a registered one. Whereas the case of the plaintiffs is that Smt.Sheela Devi never thumb marked any document as she had passed upto 8th Standard, as per pleadings of the defendants Smt.Sheela Devi had thumb marked the Will because her hands were shaky. However, in the evidence led, the defendants claimed -4- Regular Second Appeal No. 2639 of 2008 (O&M). that Smt.Sheela Devi had thumb marked the Will as the Scribe had asked her to do so. Plaintiffs, to prove that the Will had not been thumb marked by Smt.Sheela Devi, examined Yashpal Chand Jain, Hand Writing and Finger Print Expert. His report is to the effect that thumb impressions Q1 and Q2 on the Will were not comparable because of improper inking and stiffness of skin. These thumb impressions on the Will were compared by the Expert with the thumb impression Exhibit D.W.1/A on the sale deed which was thumb marked by Smt.Sheela Devi while selling land to Karnail Singh (D.W.1). The defendants did not lead any evidence to show that the thumb impressions of Smt.Sheela Devi on the Will were comparable with the sale deed (Exhibit D.W.1/A) to rebut the evidence of the Expert produced by the plaintiffs. The Courts below decreed the claim of the plaintiffs on the basis of above findings. The findings recorded by both the Courts below are the findings of fact. It could not be pointed out by the learned counsel for the defendants-appellants that such findings are based on misreading of evidence or that material evidence has not been taken into consideration. The plaintiffs being daughters of Smt.Sheela Devi are entitled to their share in the land left by her because defendants have failed to prove the Will. Under the circumstances, I do not find any patent illegality or irregularity in the findings recorded by the Courts below, which may give rise to any substantial question of law in the present -5- Regular Second Appeal No. 2639 of 2008 (O&M). appeal. Resultantly, this appeal is hereby dismissed being without any merit. ( MOHINDER PAL ) January 25, 2011. JUDGE ak