Regular Second Appeal No. 2932 of 2006 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2932 of 2006 Date of decision : February 08, 2010 Piara Singh and others ....Appellants versus Lal Gir and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Vikas Bahl, Advocate, for the appellants Mr. BR Mahajan, Advocate, for respondent nos. 1 to 6 Respondent nos. 7 to 10 exparte L.N. Mittal, J. (Oral) Plaintiffs including legal representatives of plaintiff no. 4 Shangara Singh but excluding plaintiff no. 1 Dhannu who has been impleaded as proforma respondent no. 11 have preferred instant second appeal having remained unsuccessful in both the courts below. The plaintiffs and defendants except defendant no. 2 Mandir are natural heirs of Santi since deceased. The plaintiffs sought declaration that they are owners in joint possession to the extent of half share of the property left by Santi. The plaintiffs also challenged mutations sanctioned in favour of defendant nos. 1 and 2 separately on the basis of alleged Wills Regular Second Appeal No. 2932 of 2006 -2- dated 8.9.1976 in favour of defendant no. 1 and dated 30.5.1977 in favour of defendant no. 2. The defendants, however, pleaded that the aforesaid two Wills were executed by Santi and the said Wills are valid and legal and accordingly defendant nos. 1 and 2 have become owners in possession of the respective suit properties as per said Wills. Learned Additional Civil Judge (Senior Division) Garhshankar vide judgment and decree dated 22.2.2000 dismissed the suit holding that both the Wills have been duly proved. First appeal preferred by the plaintiffs has been dismissed by learned District Judge, Hoshiarpur vide judgment and decree dated 7.3.2006. Feeling aggrieved, the instant second appeal has been preferred. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that Jagiri DW2 who is one of the marginal witnesses of the Will dated 8.9.1976 stated that the deceased was not in senses. It was accordingly contended that deceased Santi could not have executed the alleged Will. The contention is devoid of substance because Jagiri did not state that Santi was not in senses at the time of execution of Will. However, later on she used to serve in the temple defendant no. 2 and had virtually renounced the world. It was in this context that Jagiri stated that Santi had no senses except that she used to pay obeisance in the temple. Learned counsel for the appellant also contended that even Jagiri did not know testator Santi. This contention is factually incorrect because Jagiri had no where stated so. Regular Second Appeal No. 2932 of 2006 -3- He has rather stated that he had no relationship with Santi. However, it does not mean that he did not know Santi. Learned counsel for the appellants next pointed out that Jagiri has stated that he and Numbardar Mehar Chand had made Santi to understand the entire Will which was scribed by Nathu at their instance. This contention is also distorted one and without substance. Jagiri has stated that Nathu wrote on the paper as told by Bibi i.e. Santi. Jagiri had of course said that he and Mehar Chand made Santi understand the entire thing. However, it would only mean that they read over the contents of the Will and explained it to Santi. However, it remains a fact that according to the testimony of Jagiri, the Will was scribed at the instance of Santi herself. Learned counsel for the appellants next contended that the statement of Jagiri that they had travelled four miles on foot from village Bohra to Garhshankar is improbable. The entire evidence cannot be discarded merely on this ground. On the other hand, the entire statement of Jagiri has to be read as a whole and evaluated accordingly. Learned counsel for the appellants states that Jagiri appeared in the witness box on 1.3.1999 i.e. more than 22 years after the execution of the Will. So, on account of lapse of such a long period also, the witness could not be expected to remember the minute details including mode of conveyance. Learned counsel for the appellants also contended that part of the suit property mentioned in clause D of the plaint is not proved to be self acquired property of Santi as some killa numbers of the land mentioned therein are not mentioned in the sale deeds vide which Santi had purchased the said land. This contention is also irrelevant and without merit. Regular Second Appeal No. 2932 of 2006 -4- According to the Will dated 30.5.1977, self acquired property of Santi was bequeathed in favour of defendant no. 2-temple. Consequently, if a part of the suit property mentioned in clause D of the plaint is not found to be self acquired property of Santi, the same would come to defendant no. 1 under first Will dated 8.9.1976 because it is even the case of the plaintiffs that Santi was owner of the entire suit property in which the plaintiffs are claiming half share. There is concurrent finding of fact by both the courts below that the Wills have been duly proved to have been executed by Santi and Wills are legal and valid. The said finding is based on appreciation of evidence and is not shown to be perverse or illegal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is accordingly dismissed being without any merit. ( L.N. Mittal ) February 08, 2010 Judge 'tiwana'