R.S.A. No. 3802 of 2002 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3802 of 2002 (O&M) Date of decision: 4.12.2008 Gurmail Singh and others ..Appellants v. Gurdev Singh (deceased) through LRs and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. B.S. Bhalla, Advocate for the appellants. Mr. M. K. Garg, Advocate for the respondents. .. Rajesh Bindal J. The plaintiffs are in second appeal before this Court against concurrent finding of fact by both the courts below, whereby the suit filed by them for declaration and permanent injunction to the effect that they are owners in possession of half share of property left by Saudagar Singh was dismissed. Briefly, the facts are that Saudagar Singh, Paul Singh and Karnail Singh were three brothers. Saudagar Singh died bachelor on 2.7.1992. He executed a registered will in favour of the defendants-respondents on 27.6.1975. After his death on 2.7.1992, the appellants-plaintiffs filed a suit claiming half of his property being brothers of deceased-Saudagar Singh. It was claimed that during his life time, Saudagar Singh was living with them and they are in possession of the property. The respondents-defendants refuted the claim of the appellants- plaintiffs by projecting the registered will dated 27.6.1975 executed by Saudagar Singh in their favour. The primary issue which was there in the litigation was as to whether will dated 27.6.1975 executed by Saudagar Singh in favour of the respondents- defendants was valid. To challenge the will, the appellants-plaintiffs raised contentions to the effect that one of the witnesses to the will disputed his thumb marked; the beneficiaries were present at the time of execution and registration of the will; deceased-Saudagar Singh was living with the appellants- plaintiffs till his death and accordingly, there was no reason for him to have executed a will bequeathing his property in favour of the respondents-defendants and further the R.S.A. No. 3802 of 2002 [2] will was in fact as a result of fraud. Both the courts below discussed the issues raised by the appellants- plaintiffs to test the validity of the will. However, the courts below did not find favour with the submissions made and accordingly rejected the contentions and dismissed the suit. Even before this court, learned counsel for the appellants- plaintiffs raised the same issues for the purpose of challenging the validity of the will as were raised before the courts below and were rejected. A perusal of the impugned judgment and decree shows that as far as non-examination of one witness to the will, namely, Labh Singh is concerned, he was declared hostile. In fact, he appeared as a witness for the appellants- plaintiffs. He even denied to have thumb marked the will. However, when the same was got examined from the Handwriting Expert, he opined in positive by stating that thumb impressions belonged to Labh Singh only. The other witness to the will had duly proved the execution of the will, which was registered. The plea regarding the beneficiaries being present at the time of execution of the will was considered and rejected relying upon a judgment of Hon'ble the Supreme Court in Smt. Malkani v. Jamadar and others, AIR 1987 SC 767. Learned counsel for the appellants- plaintiffs has not been able to cite any judgment taking a contrary view, rather, same view was expressed by Hon'ble the Supreme Court in Sridevi v. Jayaraja Shetty, 2005(1) RCR (Civil) 795. The appellants-plaintiffs have further failed to substantiate their claim that Saudagar Singh was living with them throughout his life and they had performed his last rites. No evidence was led in support of the claim. As against this, the respondents-defendants produced on record, voters list and ration card showing that Saudagar Singh was living with them and his last rites were also performed by them at Kiratpur Sahib by dispersing his ashes. Incidentally, PW-2 and PW-3 admitted in their statements that Bhog ceremony was performed in the village where the respondents-defendants used to reside as he died there. Meaning thereby that no substance was found even in this issue raised by the appellants- plaintiffs to challenge the validity of the will. As far as case of fraud is concerned, there was no pleading to that effect and as a result thereof any evidence led in support thereof was totally alien. Even the plaintiffs' witnesses, in their oral statements, did not state anything about the fraud being played. The contention of learned counsel for the appellants-plaintiffs to the effect that reasons should have been recorded in the will to exclude the legal heirs is also misconceived for the reason that it was not exclusion of a direct beneficiary R.S.A. No. 3802 of 2002 [3] such as wife or son. The testator died unmarried. He had given his property to the sons of his one brother leaving the other brother. In such a situation, even if nothing is mentioned about the other brother, the will cannot be said to be executed in a suspicious circumstances when all other factors go in favour of the will being validly executed. Hon'ble the Supreme Court in Rabindra Nath Mukherjee and another v. Panchanam Banerjee (Dead) by LRs and others, (1995- 3) PLR 594 held that mere deprivation of natural heirs by the testarix should not raise any suspicion, because the whole idea behind execution of will is to interfere with the normal line of succession. Another factor which goes in favour of the will being a genuine document is that Saudagar Singh died more than 17 years after the execution of the will, which means that he was of sound mind and quite active at the time the will was executed. It is not a case where just before the death, some one got the will executed. No material has been placed on record by the appellants-plaintiffs to prove that Saudagar Singh was not of sound mind or was incapacitated on 27.6.1975, the date on which he executed the will. The execution of two documents on the same date also cannot be said to be a suspicious circumstances to discard the will being fraudulent with the plea that in fact the signatures/thumb impressions were required for execution of another document, but simultaneously the same were got on a will also. There is no evidence to support this plea. None of the witnesses to the document have stated in support of this plea. The will is a registered document. The other document executed on the same date is not disputed. Accordingly, even this cannot be said to be a suspicious circumstance to hold the will to be not genuine. The findings recorded by the learned court below are plain and simple findings of fact giving rise to no question of law, much less a substantial question of law. Accordingly, the present appeal is dismissed. (Rajesh Bindal) Judge 4.12.2008 mk