R.S.A.No. 4099 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4099 of 2008 (O&M) Date of decision: 13.10. 2009 Sarabjit Kaur and another ......Appellants Versus Jasvir Kaur @ Balbir Kaur and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Ashok Singla, Advocate, for the appellants. Mr.Arvind Kashyap, Advocate, for the respondents. *** SABINA, J. Plaintiff Jasbir Kaur @ Balbir Kaur filed a suit for declaration as well as for permanent injunction, which was decreed by the Additional Civil Judge (Sr.Divn.), Fatehgarh Sahib vide judgment and decree dated 26.2.2007. In appeal, the said judgment and decree were upheld by the Additional District Judge, Fatehgarh Sahib vide judgment and decree dated 17.9.2008. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 5 and 6 of its judgment, are as under:- “5. The brief facts of the suit out of which the R.S.A.No. 4099 of 2008 (O&M) 2 present appeal has been directed are that the plaintiff filed a suit for declaration to the effect that she is joint owner in joint possession to the extent of 1/3 share in the suit land and for permanent injunction restraining defendants from alienating any portion and specific khasra numbers out of the land as fully detailed in the head note of the plaint and from ousting the plaintiff from joint possession of the suit land. It has been averred that previously Hansa Singh son of Badan Singh, who died in the year 1983, was joint owner in possession to the extent of 860/54600 share in the suit land detailed in head note 'B' of the plaint and he remained in possession of specific portion out of the suit land detailed in head note A of the plaint. Plaintiff and defendants No. 1 and 2 are the only legal heirs of said Hansa Singh deceased and are entitled to inherit the property left by Hansa Singh in equal shares. Plaintiff is daughter, defendant No.1 is widow and defendant No.2 is son of deceased Hansa Singh. At the time of death of Hansa Singh, the plaintiff and defendant No.2 were minors and defendant No.1 by taking the advantage of their minority, got succeeded to sanction the mutation regarding the property of said Hansa Singh in her name by producing a false, forged and fabricated Will before the revenue authorities. R.S.A.No. 4099 of 2008 (O&M) 3 Mutation No.1296 dated 5.5.1988 sanctioned in favour of defendant No.1 is illegal, null and void and does not create any title in her favour. Defendants on the basis of illegal mutation No.1296 is intending and threatening to alienate the suit land and is also threatening to oust the plaintiff from joint possession of the suit land for which they have no right. Hence, this suit. 6. Notice of the suit was given to the defendants who appeared and filed written statement stating that Hansa Singh died on 13.1.1988 not in the year 1983. Hansa Singh during his life time executed a last and valid Will dated 1.1.1998 in favour of his wife Bant Kaur defendant No.1 in the presence of attesting witness and on the basis of said Will Bant Kaur defendant No.1 succeeded to the property of Hansa Singh and denied all the averments of the plaintiff and have prayed that suit be dismissed with costs. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to the decree of declaration as prayed for in the heading of the plaint? OPP 2. Whether the plaintiff is entitled in the decree of permanent injunction as prayed for ? OPP R.S.A.No. 4099 of 2008 (O&M) 4 3. Whether the plaintiff has no cause of action to file the present suit? OPD 4. Whether the suit is time barred? OPD 5. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit for declaration that she had 1/3rd share in the suit land left by her father Hansa Singh. Admittedly, Hansa Singh was owner in possession of the suit land and he died on 13.1.1988 leaving behind plaintiff and defendants as his only legal heirs being his daughter, widow and son. Defendant No.1 alleged that the Will had been executed in her favour by her husband Hansa Singh. The said Will is dated 1.1.1988. Mutation was sanctioned on 5.5.1988 by Assistant Collector Ist Grade, Fatehgarh Sahib in favour of defendant No.1 on the basis of the Will. It was further averred that the original Will had been mis-placed during the proceedings for sanction of mutation dated 28.3.1988. At the time of death of Hansa Singh, both the plaintiff and defendant No.2 were minor. In order to prove the due execution of the Will in question Ex.D-2, defendants examined DW-2 Gurmukh Singh, attesting witness of the Will. The said witness has deposed with regard to the due execution of the Will by Hansa Singh in favour of his wife. A Will is a document that speaks of the mind of the R.S.A.No. 4099 of 2008 (O&M) 5 deceased after his death. The executant of the Will is though never available for deposing as to under what circumstances, he has executed the Will. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will. A Will is required to be proved like any other document. Since the Will is required to be attested and as per Section 68 of the Indian Evidence Act, 1872, at least one attesting witness is required to be examined to prove due execution of the Will. The attesting witness is required to establish that the Will in question was executed by the testator in the presence of attesting witnesses and they had attested the same in the presence of the testator. In a case where the Will is a registered document then the endorsement made by the Sub Registrar that the Will had been thumb marked or signed by the executant in his presence after it was read over to the executant has a presumption of truth. It is also a settled proposition of law that in connection with Wills execution of which is alleged to be surrounded by suspicious circumstances, the test of satisfaction of judicial conscience has been evolved. That test emphasis that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious R.S.A.No. 4099 of 2008 (O&M) 6 circumstances, the Court has to be fully satisfied that the Will has been validly executed by the testator. In the present case, the Will in question is un-registered document. Although registration of Will is not compulsory but it goes a long way in proving the genuineness of the Will. The original of the Will was alleged to have been lost. The defendants, however, failed to establish the loss of the original Will. The defendants also failed to establish as to for what purpose, the Will was required in a litigation, which was pending during the life time of Hansa Singh. In these circumstances, the Courts below had rightly held that the defendants had failed to establish the factum of loss of Will in question. The defendants also failed to prove as to from where they had got the photocopy of the Will Ex.D-2. Both the Courts below have noticed that DW-2 Gurmukh Singh, attesting witness of the Will, had failed to identify the thumb impressions of Hansa Singh on Ex.D- 2. Thus, defendant No.1 had failed to prove the Will set up by her. In these circumstances, the Court below rightly held that the plaintiff was entitled to inherit 1/3rd share in the suit land on the basis of natural succession. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 13, 2009 anita