R.S.A.No.1154 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.1154 of 2009 Date of Decision : 17.09.2009 Bhim Sain and another ...Appellants Versus Nathiya and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. S.K.Garg Narwana, Advocate, for the appellants. Mr. Parveen Hans, Advocate, for respondent No.1. HEMANT GUPTA, J. (ORAL) Defendant Nos.1 and 2 are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for declaration that the plaintiff is owner in possession of 3/14th share out of the land measuring 147K-3M, as daughter of Nanak, was decreed. The plaintiff claims to be daughter of Nanak from his first wife Lado, whereas defendants are the children of Nanak from his second marriage with Milli. Nanak has died on 13.8.1975. Defendant Nos.1 and 2 claim to have inherited the property of Nanak on the basis of Will dated 29.7.1974. Mutation was sanctioned in favour of the defendants on 17.12.1975 on the basis of such Will. Issue No.3 was framed to the effect that whether Nanak executed Will dated 29.7.1974 in favour of defendant Nos.1 and 2. The defendants have only examined DW-3 Dinesh Kumar, Registration Clerk, who has produced the record pertaining to registration R.S.A.No.1154 of 2009 2 of the Will. None of the attesting witnesses of the Will were examined. Therefore, the learned trial Court found that the Will Ex.D-1 has not been proved. Consequently, the parties will inherit the property by way of natural succession and thus, the plaintiff is the owner of the suit land. Such decree was affirmed in appeal. Before this Court, learned counsel for the appellants has argued that the Will is a document more than 30 years old, therefore, the production of certified copy of the Will Ex.D-1 is sufficient proof of the Will. Reference is placed upon the judgments of this Court in Raj Kumar Dhawan Vs. General Public and others (2004) 3 PLR 142 and that of Andhra Pradesh High Court in Kesrapu Manikyalu Vs. Veena Perumallayya (died) and others 2000(2) Civil Court Cases 247. It is further contended that the appellants were minor at the time of the execution of the Will, therefore, there could not be any fraud or misrepresentation in execution of the Will, as alleged by the plaintiff. It is also pointed out that the appellants have moved an application for additional evidence before the learned first Appellate Court so as to produce the original Will and the death certificates of all the three attesting witnesses. But the said application has been declined by the learned first Appellate Court. It is also contended that the judgment and decree passed by the learned first Appellate Court is a non-speaking judgment as the first Appellate Court has picked up para 11 of the judgment of the learned trial Court and reproduced verbatim the same as para 13 of judgment of the learned first Appellate Court. Lastly, it is contended that the suit is simpliciter suit for declaration, is not maintainable as admittedly defendants are in possession of the suit R.S.A.No.1154 of 2009 3 property. I do not find any merit in the arguments raised by the learned counsel for the appellants. Hon'ble Supreme Court in Bharpur Singh Vs. Shamsher Singh (2009) 3 SCC 687, held that the provisions of Section 90 of the Evidence Act, 1872 have no application in respect of proof of Will. It was held to the following effect : "19. The provisions of Section 90 of the Evidence Act, 1872 keeping in view the nature of proof required for proving a will have no application. A will must be proved in terms of the provisions of Section 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872. In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely, Sections 69 and 70 of the Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as Section 68 of the Evidence Act postulates that execution must be proved by at least one of the attesting witnesses, if an attesting witness is alive and subject to the process of the court and capable of giving evidence." The judgments referred to by the learned counsel for the appellants do not deal with the proposition directly. In view of direct and specific judgment of Hon'ble Supreme Court, referred to above, I do not find any substance in the argument raised by the learned counsel for the appellants. The argument that the appellants were minor at the time of the execution of the Will is wholly unconsequential. The initial onus is on the propounder to prove the due execution of the Will. In the absence of proof of Will, it is wholly immaterial whether the beneficiary were minor R.S.A.No.1154 of 2009 4 or not at the time of alleged execution of the Will. The argument that the learned trial Court has erred in law in declining the application for additional evidence is misconceived. Issue No.3 was to the effect that whether Nanak has executed Will dated 29.7.1974. The onus of proof of such issue was on the defendant- appellants. It was open to the defendants to lead such evidence as was available and admissible to prove the Will dated 29.7.1974. Section 69 of the Evidence Act, 1872 provides for proof of the Will in such circumstances, when none of the attesting witnesses are available. Having failed to lead any such evidence to prove the Will dated 29.7.1974, when the defendants were leading their evidence, the application for additional evidence is only to fill up the lacuna and has been rightly declined. The application is to produce the original Will and death certificates on record. Such certificates or Will are not sufficient to prove the execution of the Will dated 29.7.1974. Therefore, I do not find any merit in the said argument raised by the learned counsel for the appellants. The argument that the plaintiff has not claimed consequential relief of possession, therefore, the suit is not maintainable, is again not tenable. The effect of the declaration is that the plaintiff would be deemed to be co-owner being one of the natural heirs of Nanak. With such declaration, the plaintiff is entitled to claim partition from the revenue authorities. Consequential relief of possession could not be granted by the Civil Court in case of agricultural land, as the actual possession is to be granted only by the revenue Courts. Therefore, the said argument is not tenable. R.S.A.No.1154 of 2009 5 Though the learned first Appellate Court should not have picked up para 11 of the learned trial Court verbatim, but the fact remains that in the absence of any evidence of proof of Will, the conclusion drawn by the learned trial Court cannot be said to be illegal or unwarranted in any manner. In view of the above, I do not find any patent illegality or irregularity in the judgment and decree passed by the Courts below, which may give rise to any substantial question of law for consideration of this Court in second appeal. Dismissed. 17.09.2009 (HEMANT GUPTA) Vimal JUDGE