RSA No.4471 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RFA No.4471 of 2009 Date of Decision: 02.12.2010 Chottu Ram .....Appellant Versus Ramesh Kumar and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Sudhir Sharma, Advocate for the appellant. Mr. Sanjay Mittal, Advocate for respondent Nos.1 and 2. L. N. MITTAL, J (ORAL) Defendant No.2-Chottu Ram, who was successful in the trial Court, but has been unsuccessful in the lower appellate Court, has filed the instant second appeal. Respondent Nos.1 and 2-plaintiffs filed suit against appellant defendant No.2 and proforma respondent Nos.3 to 5 (defendant Nos.1, 3 and 4). Dispute in the suit is regarding share of Siri Chand in agricultural land. The plaintiffs claimed to be owners in possession of the said share on the basis of registered Will dated 26.10.1998 executed in their favour by Siri Chand. The plaintiffs, therefore, also challenged the inheritance mutation regarding share of Siri Chand in favour of defendants. Ancillary reliefs including permanent injunction were also claimed. Only defendant No.2 contested the suit whereas other defendants were proceeded ex parte. Defendants No.1 and 2 are brothers whereas defendant Nos.3 and 4 are sisters of Siri Chand RSA No.4471 of 2009 -2- since deceased. Defendant No.2 denied the averments of the plaintiffs regarding the Will. It was pleaded that Siri Chand was old illiterate villager and was hard of hearing. His eye sight was also weak. He was not mentally fit on account of old age. Alleged Will is illegal and fraudulent. Plaintiffs have no concern with the land of Siri Chand. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Mohindergarh vide judgment and decree dated 07.05.2008 dismissed the plaintiffs' suit. However, first appeal preferred by the plaintiffs has been allowed by learned Additional District Judge, Narnaul vide judgment and decree dated 09.09.2009 and thereby suit filed by the plaintiffs has been decreed. Feeling aggrieved, defendant No.2 has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. As regards execution of registered Will dated 26.10.1998 by Siri Chand in favour of plaintiffs, the same has been duly proved by the plaintiffs. They have examined Registration Clerk regarding the said Will. Scribe of the Will has also been examined as witness. Both attesting witnesses of the Will have also been examined. All of them have supported the plaintiffs' case regarding execution of the Will in their favour by Siri Chand. This evidence of the plaintiffs regarding the Will is very cogent and reliable and is sufficient to prove the same. Statements of aforesaid witnesses of the plaintiffs could not be impeached in their cross-examination. Registration of the said Will further adds to its authenticity. Siri Chand testator also resided with the plaintiffs and their family as depicted by ration card. RSA No.4471 of 2009 -3- Learned counsel for the appellant contended that plaintiff No.1 Ramesh Kumar as PW-3 stated that his father had also accompanied the testator at the time of the execution of the Will whereas Phool Singh PW-4 and Satyabir PW-5 attesting witnesses of the Will denied the presence of plaintiffs' father Omkar Singh at the time of execution of Will which has also not been signed by Omkar Singh. This is not a contradiction much less material one because plaintiff No.1 himself was not present there at that time and, therefore, his statement that his father was present, carries no weight. Learned counsel for the appellant also contended that Siri Chand was aged 70 years and was hard of hearing and was not capable of executing the Will. The contention cannot be accepted. There is no medical evidence to depict that Siri Chand was hard of hearing or that he was incapable of executing the Will. On the contrary, the plaintiffs' witnesses have stated that Siri Chand executed the Will voluntarily and after understanding the contents thereof. Registration of the Will further depicts that Siri Chand was capable of executing the Will because otherwise the Will would not have been registered. In these circumstances, in the absence of any medical evidence, it cannot be said that Siri Chand was incapable of executing the Will. It may be added that Ram Niwas DW-3 and the defendant No.2-appellant himself stated that Siri Chand was having average wisdom and intelligence. Ram Niwas also did not know if Siri Chand was hard of hearing. It is thus manifest that there is no cogent evidence to substantiate the aforesaid contention of counsel for the appellant. RSA No.4471 of 2009 -4- On the contrary, there is concurrent finding by both the Courts below regarding valid execution of the impugned Will by Siri Chand in favour of the plaintiffs. The said finding is fully justified by evidence on record and is supported by cogent reasons. The said finding, therefore, cannot be said to be perverse or illegal in any manner so as to warrant interference in second appeal nor any question of law, much less substantial question of law, arises for determination in the instant second appeal regarding valid execution of the Will. Learned counsel for the appellant next contended that by the impugned Will, Siri Chand bequeathed all his property except agricultural land whereas the instant suit relates to share of Siri Chand in agricultural land and consequently suit property is not covered by the impugned Will. This contention is also untenable. It is mentioned in the Will that the testator would remain owner in possession of his entire agricultural land, Nohra, Guwara, Bani, Banjar, Bank balance, amount in post office etc. etc. wherever located and immediately on his death, plaintiffs would be owners in possession of entire property, Nohra, Guwara, Bani, Banjar, Bank balance, amount in post office etc. etc. Learned counsel for the appellant contended that the testator while stating his ownership and possession mentioned 'agricultural land', but while bequeathing the property in favour of plaintiffs mentioned other properties, but did not mention the agricultural land and, therefore, agricultural land was not bequeathed. The contention is misconceived and untenable. Even while bequeathing his properties, the testator specifically stated that all his properties were being bequeathed in favour of plaintiffs. The RSA No.4471 of 2009 -5- words 'agricultural land' have been substituted by the word 'property' which would include agricultural land. Even otherwise, lower appellate Court has discussed this aspect in great detail after adverting to the principles of interpretation of Will. One of the cardinal principles for interpretation of the Will is to see the intention of the testator. In the instant case, bare reading of the Will makes it manifest and leaves no room for doubt that it was clear intention of the testator to bequeath all his properties, moveable as well as immoveable, agricultural as well as non-agricultural, in favour of the plaintiffs, for services being rendered by the plaintiffs to the testator. Learned lower appellate Court has rightly interpreted the Will in this regard and contention advanced by counsel for the appellant to the contrary cannot be accepted. For the reasons aforesaid, I find no merit in the instant second appeal which is accordingly dismissed. 02.12.2010. ( L. N. MITTAL ) A. Kaundal JUDGE