RSA No. 2150 of 2009 & C.R. NO. 3009 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2150 of 2009 Ramesh Kumar and others ....Appellants VERSUS Shinda Ram and another ....Respondents C.R No. 3009 of 2009 Ramesh Kumar and others ....Petitioners VERSUS Shinda Ram and another ....Respondents Decided on : 29-05-2009 CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. R.S.Bajaj, Advocate for the appellants-petitioners MAHESH GROVER, J The appellants are the defendants who have challenged the order of the learned Trial Court dated 25.7.2007 and that of the learned First Appellate Court dated 8.5.2009. The plaintiff-respondent no.1 filed a suit for declaration to the effect that he was owner in possession of the property which was depicted in red colour in the site plan attached to the plaint and was described sufficiently by its location. He pleaded that there was a validly executed Will dated 23.8.1995 in his favour executed by Mangu Ram his grandfather qua this land. He also prayed for a decree of mandatory injunction directing RSA No. 2150 of 2009 & C.R. NO. 3009 of 2009 2 the appellants-defendants to hand over vacant physical possession of the suit property and also prayed for grant of permanent injunction seeking to restrain the defendants from parting with possession or further from changing the nature of the suit property by raising any kind of construction thereon or demolishing it in whole or any of its parts. He pleaded that he had become the owner of the property on the basis of the Will executed by Mangu Ram and subsequently in the year 2002 when his wife was admitted in the hospital, the defendants took advantage of his absence from the suit property and forcibly occupied it. The appellants denied the averments and also denied the execution of the Will. It was however admitted that Mangu Ram was the owner in possession of the suit property who died on 3.3.98. They pleaded that they are the exclusive owners in possession of the suit property as defendant no. 1 namely Shiv Ram is son of deceased Mangu Ram and other defendants are the sons of defendant no.1. It was pleaded that the plaintiff- respondent no.1 has been given his share and has also been given a house by purchasing the same from the funds of the present defendants, in which house he was residing since and it was pleaded that he has no concern with the suit property. Both the parties went to trial on the following issues:- 1. Whether the plaintiff is entitled to declaration as prayed for?OPP 2. Whether deceased Mangu Ram executed Will dated 23.8.1995?OPP. 3. Whether the plaintiff is entitled to Mandatory injunction as prayed for?OPP. RSA No. 2150 of 2009 & C.R. NO. 3009 of 2009 3 4. Whether the plaintiff is entitled to permanent injunction as prayed for?OPP. 5. Whether the suit is not maintainable in the present form?OPD 6. Whether the suit is bad for mis-joinder and non-joinder of necessary parties?OPD. 7. Whether the plaintiff has got no cause of action to file the present suit?OPD 8. Whether the suit is not maintainable for want of proper court fee?OPD. Learned Trial Court held that the Will had been validly executed and therefore, decreed the suit of the plaintiff-respondent no.1 in the following terms:- “Para 22.- In view of findings under aforesaid issues, suit of the plaintiff succeeds and a decree for declaration to the effect that plaintiff is owner of the suit property on the basis of the Will dated 23.8.1995 Ex.P-1 and for mandatory injunction directing the defendants to hand over the vacant, peaceful physical possession of the suit property to the plaintiff and for permanent injunction restraining the defendants from parting with possession or further from changing the nature of the suit property by raising any kind of construction or demolishing any kind of its parts, is passed in favour of the plaintiff and against the defendants, with costs and three months time is hereby given to the defendants to hand over the vacant possession of the suit property to the plaintiff from the RSA No. 2150 of 2009 & C.R. NO. 3009 of 2009 4 date of passing of the decree, failing which the plaintiff shall be at liberty to follow the due process of law. Decree sheet be drawn and file be consigned to the record room.” In appeal before the learned First Appellate Court, the findings of the learned Trial Court were affirmed which has resulted in the filing of the present regular second appeal. It has been contended by the learned counsel for the appellants that Mangu Ram was owner of only 6 marlas of land whereas the decree in question pertains to area which is much in excess of the area which was in ownership of the deceased Mangu Ram and since the respondents had set up a Will then in such an eventuality, the successors could not claim anything more than what was owned and possessed by deceased Mangu Ram. It was the contention of the learned counsel for the appellants that this factor that the details of the land has not been given in the Will itself is a suspicious circumstance which should have been taken against the plaintiff-respondent no.1. He pleaded that since the Will did not prescribe the area of the property the document apparently was a fictitious one and ought to have been discarded by both the Courts below. He further pleaded that Will was not proved in accordance with provisions of Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act. Reliance was placed on case titled as Janki Naryan Bhoir versus Narayan Namdeo Kadam 2003(1) Apex Court Judgments 186 (SC) wherein Hon'ble Apex Court observed as under:- Para 8: To say will has been duly executed the requirements mentioned in clauses (a), (b) and (c ) of Section 63 of the Succession Act are to be complied with i.e. (a) the RSA No. 2150 of 2009 & C.R. NO. 3009 of 2009 5 testator has to sign or affix his mark to the Will or he has to get it signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a Will; (c ) the most important point with which we are presently concerned in this appeal is that the Will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgment of signature or mark or of the signature of such other person, and each of the witnesses has to sign the Will in the presence of the testator.” He also contended that during the course of proceedings before the First Appellate Court an application for amendment of the written statement was moved which had been declined. A separate revision petition has been preferred by the appellants on 19.5.2009 bearing C.R. No. 3009 of 2009. On 25.5.2009 this fact was brought to the knowledge of this Court and this civil revision was also ordered to be listed alongwith this appeal. It is his contention that the impugned order in the revision petition declining his prayer for amendment has seriously prejudiced his case as he wanted to bring adequate material on record to show that more area could not have been bequeathed by the testator. I have heard the learned counsel for the appellants and have RSA No. 2150 of 2009 & C.R. NO. 3009 of 2009 6 perused the impugned judgments and the impugned order. Since the civil revision no. 3009 of 2009 was also directed to be listed alongwith present regular second appeal, the same is also being answered hereunder. Learned counsel for the appellants has raised a two fold contentions; (i) that since the Will does not depict the measurement of the property which has been bequeathed by the testator in favour of the respondent, therefore, this in itself may be construed as a suspicious circumstance and ought to have been taken into consideration in order to discard the Will; (ii) that the Will has not been proved in accordance of the provisions with Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act. If the contents of the Will are to be perused then it describes the property which has been bequeathed to the respondent as follows:- “Hence, I am making this Will with my free consent and desire that the house situated in Mokhey, bounded as East: Amru, West: Kabal Ram, North: street, South: Bhajna Ram, will be owned by my son Gyan Chand r/o Mokhey Distt. Jalandhar and the house bounded as East : street, West: Phimi/land, North: Chhinda Ram, South: Phirni/land will be owned by my grandson Madan Lal s/o Joginder Ram r/o Mokhey Distt. Jalandhar, and the house bounded as East: street, West: Shiv Ram, street, North: Bhajna Ram, South: Madan Lal will be owned by my grandson Chhinda Ram s/o Shiv Ram r/o Mokhey Distt. Jalandhar. I have given my son Shiv Ram the house of his share i.e. 0-9m which was taken from Sarpanch RSA No. 2150 of 2009 & C.R. NO. 3009 of 2009 7 Seena Singh and registry has been executed in his name. This is my 2nd and final Will.” It is clear from the above that the property has been described by its location and merely because the measurement and dimension of the suit property have not been given; ipso facto would not lead to a conclusion regarding the validity of the Will and its execution thereof. A more holistic view has to be taken by the Courts while dealing with such like questions and merely because the testator has chosen to describe the property in the manner in which he thought fit would not render the Will to be a suspicious document if there are other attending circumstances which point to the validity thereof. No such suspicious circumstance has been pointed out from the record by the learned counsel for the appellants. Therefore, the contention of the learned counsel for the appellants that since the property was not described by its dimensions and measurements therefore, the Will was bad has to be rejected. In so far as the compliance of provisions of Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act are concerned, I am of the considered opinion that the plaintiff-respondent has adequately discharged the requirement of law. The relevant Section 63 of the Indian Succession Act is reproduced hereunder for reference:- “Section 63 Execution of unprivileged Will- Every testator, not being a soldier, employed in an expedition or engaged in actual warfare (or an airman so employed or engaged ) or a mariner at sea, shall execute his Will according to the following rules:- (a) The testator shall sign or shall affix his mark to the RSA No. 2150 of 2009 & C.R. NO. 3009 of 2009 8 Will or it shall be signed by some other person in his presence and by his direction; (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (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 been 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 or 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.” There was no dispute that the property belong to Mangu Ram who is the author of the Will. He was possessed of three properties and one of the properties had gone to predecessor in interest of the present appellants. The plaintiff–respondent who filed the suit in para 2 of the plaint had pleaded as under:- Para 2: That the defendants are neither the beneficiaries of the Will executed by deceased Mangu Ram, and earlier in order to achieve their illegal missions, the defendants have caused injuries to the plaintiff and as well as his wife, namely Jasbir Kaur, for which a case FIR No. 403/02 RSA No. 2150 of 2009 & C.R. NO. 3009 of 2009 9 dated 13.10.2002 u/sec. 323/324/34 IPC registered by the police of P.S.Sadar Jalandhar and a cross case was also got registered by the abovesaid persons against the plaintiff namely Shinda Ram, Joginder Ram and Madan Lal, which is a counter blast to the said criminal case which has already been registered against the defendants and after receiving the injuries at the hands of the defendants, the plaintiff alongwith his wife got admitted in the Civil Hospital, Jalandhar where the medical was also conducted by the doctor concerned of Civil Hospital, Jalandhar on 6.10.2002, and in the absence of the plaintiff and his wife, the defendant forcibly and illegally occupied the portion of the plaintiff as fully mentioned in the head note of the plaint, and have also misappropriated the house hold belongings and other articles of the plaintiff. However, it is worth while mentioning here that the said criminal cases are still pending in the learned Court of Shri K.K.Kareer, Addl. CJM, Jalandhar and the same are fixed for evidence of the prosecution, hence the possession over the suit property of the plaintiff as fully mentioned above, of the defendant is illegally, unlawful because they have got no legal right/title or interest over the same, in any manner whatsoever, hence the status of the defendants over the suit property is a tress passers, because they are neither the owners of the suit property nor belonged to them, but they are illegally occupying and using the same without any sufficient cause of reasons.” In the written statement filed by the appellants to this RSA No. 2150 of 2009 & C.R. NO. 3009 of 2009 10 corresponding paragraph they have categorically admitted the averments made in para no.2 of the plaint, thereby candidly admitting the suit property being in the ownership of Mangu Ram and at that point of time no ambiguity was pleaded. Therefore, the identity of the property was never in question. The plaintiff-respondent in order to establish the veracity of the Will examined Joginder Singh PW3 as one of the witnesses. The other attesting witnesses Gian Singh had died. His son Avtar Singh was examined as PW4 who identified the hand-writing of his father which appeared in the form of signatures on the Will. Jasvir Singh, Registration Clerk of Kartarpur was examined as PW5 who brought the summoned record dated 23.8.1995 and testified to the validity thereof by corroborating it with the entry in the register. The only ground which has been taken by the learned counsel for the appellants to plead his case is that the testator did not sign or affix his mark to the Will and he had to get it signed by some other person in his presence and by his direction and that the signatures or mark of the testator or the signature of the person signing at his direction, had to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a Will; that the Will has to be attested by two or more witnesses and each of these witnesses must have seen the testator signing or affixing his thumb mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgment of signature or mark or of the signature of such other person, and each of the witnesses has to sign the Will in the presence of the testator. The contention is obviously based on the observations of the RSA No. 2150 of 2009 & C.R. NO. 3009 of 2009 11 Hon'ble Supreme Court which have been reproduced above in Janki Narayan Bhoir's case (supra). If the evidence on record is to be seen then the surviving attesting witness has adequately proved the Will. PW3 Joginder Singh has stated in his testimony that the Will was signed in his presence and in the office of Sub-Registrar. His statement is extracted herebelow:- “That the said Will was duly executed and registered by Sh. Mangu Ram son of Labhu Ram son of Badho r/o village Mokhe, Tehsil and District Jalandhar in my presence and as well as in the presence of Gian Singh Lambardar, however the said Gian Singh Lamberdar has since expired, whose signature I also identified because the same has been written by him in my presence in Punjabi language. The said will was scribed by deed writer Mukhtiar Din, Deed Writer, Kartarpur, District Jalandhar at the instance of said Mangu Ram. The said Will was duly entered by the Deed Writer in his own register in my/our presence and he also obtained the signature of myself and as well as Gian Singh above said Lamberdar in his register after put thumb impression of the said Mangu Ram. The said Will was duly read over and explained by the deed writer to said Mangu Ram, in my presence and after listening and understanding the said Will said Mangu Ram also put thumb impression on said Will which is Ex.P-1, in our presence after admitting the contents of the Will in question as correct and after put thumb impression of said Mangu Ram on said Will as well as the register Deed Writer after that I RSA No. 2150 of 2009 & C.R. NO. 3009 of 2009 12 alongwith said witness namely Gian Singh Lamberdar signed on the said Will as well as the register of Deed Writer.” Learned counsel for the appellants could not shatter the testimony of this witness despite lengthy cross-examination. From the above, it is clear that the provisions of Section 63 of the Indian Succession Act have been sufficiently complied with. The question of law that has been raised by the learned counsel for the appellants is that “whether in the given set of circumstances, the Will has been proved under the provisions of Section 63.” In the considered opinion of this Court in view of the evidence which is before this Court and for the reasons given above, the Will has been adequately proved and sufficient compliance of the provisions of Section 63 of the Indian Succession Act has been made. Consequently, appeal being devoid of any merit is hereby dismissed. In so far as the revision petition is concerned, the appellants have moved an application for amendment before the Learned First Appellate Court and it was sought to be pleaded that Mangu Ram could not have bequeathed property to the extent of 19 marlas and only 6 marlas could have been bequeathed. However, as observed earlier, the appellants himself had in their written statement admitted to the identity of the property and no such plea was raised which ought to have been in their knowledge. The lapse was sought to be attributed to the counsel but I am afraid in view of the categoric admission of the appellants admitting the ownership of suit property and its identity to that of Mangu Ram , subsequent plea sought to be introduced by way of amendment was rightly declined by the learned RSA No. 2150 of 2009 & C.R. NO. 3009 of 2009 13 First Appellate Court. Consequently, the revision petition being devoid of any merit is also hereby dismissed. May 29, 2009 (Mahesh Grover) rekha Judge