R. S. A. No. 2112 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2112 of 2011 Date of Decision : May 13, 2011 Gurtej Singh .... Appellant Vs. Kartar Kaur and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. B. R. Gupta, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Defendant no.1 Gurtej Singh having failed in both the courts below has filed the instant second appeal. Plaintiffs/respondents no.1 and 2 – Kartar Kaur and Jas Kaur – both wives of late Chand Singh, filed suit against defendant no.1-appellant as the sole defendant. However, since during pendency of the suit, defendant Gurtej Singh sold part of the suit property, vendees were accordingly impleaded as defendants no.2 to 5 (proforma respondents no.3 to 6 herein). Plaintiffs have alleged that plaintiff no.1 is the first legally R. S. A. No. 2112 of 2011 2 wedded wife of Chand Singh, their marriage having taken place about 65 years prior to the filing of the suit. Since no child was born out of the wedlock, with the consent of his wife, Chand Singh performed second marriage with plaintiff no.2 Jas Kaur about 50 years prior to the filing of the suit. However, no child was born even out of this wedlock. Chand Singh was owner in possession of the suit land. On his death, plaintiffs being his sole legal heirs, have inherited the suit land and are owners in possession thereof. Defendant no.1 has set up Will dated 30.03.1999 allegedly executed by Chand Singh. However, in fact, Chand Singh never executed any such Will. He died on 24.04.1999 at the age of 95/96 years. He did not have proper physical and mental health for 3-4 years prior to his death and was confined to bed. Defendant no.1 has no right, title or interest in the suit land. Alleged Will was never executed by Chand Singh, but defendant no.1 has got sanctioned mutation no.4573 on 30.08.2001 regarding the suit land. The said mutation is illegal and null and void. The impugned Will is result of fraud and forgery and has been fabricated by defendant no.1 to grab the suit land. Sale of the part of the suit land by defendant no.1 to defendants no.2 to 5 during pendency of the suit was also accordingly challenged. Defendant no.1 admitted the relationship of plaintiffs with the deceased, but pleaded that plaintiff no.2 is not legally wedded wife of Chand Singh. It was also alleged that Chand Singh himself executed the impugned Will dated 30.03.1999 bequeathing the suit land to defendant R. S. A. No. 2112 of 2011 3 no.1. Plaintiff no.1 also accompanied Chand Singh at the time of execution of the Will. Chand Singh had sound mental and physical health at the time of execution of the Will. The Will was also got registered. Chand Singh had already transferred 11½ acres land of a different village in favour of plaintiff no.1 by way of Civil Court decree. Now, defendant no.1 has become owner in possession of the suit land pursuant to impugned Will. Plaintiffs have no concern with the suit land. Sale deed dated 25.04.2003 executed by defendant no.1 in favour of defendants no.2 to 5 regarding part of the suit land is legal and valid. Defendants no.2 to 5 are bona fide purchasers of the said land. Other plaint averments were broadly controverted. Various other pleas were also raised. Defendants no. 2 to 5 also filed written statement pleading similar version. Learned Civil Judge (Junior Division), Sirsa, vide judgment and decree dated 21.11.2009, decreed the plaintiffs' suit. Defendant no.1 and defendants no.2 to 5 preferred separate first appeals against judgment and decree of the trial court. Learned Additional District Judge, Sirsa, vide common judgment and decrees dated 12.02.2011, dismissed both the appeals. Feeling aggrieved, defendant no.1 has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. R. S. A. No. 2112 of 2011 4 To prove the impugned Will, defendants examined Niranjan Singh (DW-2) – marginal witness of the Will. However, there are many suspicious circumstances about the Will, which have not dispelled by defendant no.1-appellant, who is propounder of the Will. Firstly, plaintiffs are two wives of testator Chand Singh. There is vague recital in the impugned Will that the testator has already satisfied the claim of his wife. It is also the version of the defendants that the testator had already transferred 11½ acres land in favour of plaintiff no.1 by way of Civil Court decree. However, no such Civil Court decree has been produced in evidence nor there is any other material on record to depict that claim of plaintiff no.1 had been satisfied by the testator. Moreover, there is neither any recital in the Will nor there is any plea by the defendants regarding claim of plaintiff no.2, who is also wife of late Chand Singh. It may be added that marriage of plaintiff no.2 with Chand Singh, during the lifetime of his first wife – plaintiff no.1, is not invalid because said marriage of plaintiff no.2 with Chand Singh was performed before enforcement of Hindu Marriage Act, 1955. It is thus apparent that there was no reason for Chand Singh to have disinherited his wives, who lived with him for 65 years (plaintiff no.1) and 50 years (plaintiff no.2) and stood with him through thick and thin because the plaintiffs and Chand Singh had no issue. The alleged Will is dated 30.03.1999 and Chand Singh died on 24.04.1999 i.e. after 25 days. This circumstance, by itself, may not be R. S. A. No. 2112 of 2011 5 sufficient to discard the Will, if considered in isolation. However, coupled with other circumstances, this circumstance also assumes significance. Chand Singh was aged 95 years at the time of his death. The Will was executed just before his death. Consequently, plaintiffs' version that he was physically and mentally incapable of executing the Will becomes reliable. Niranjan Singh (DW-2) is the sole witness, who has proved the execution of the alleged Will. However, it has come in evidence that Niranjan Singh is highly interested witness because he has admitted that he has taken land in exchange from defendant no.1, who got the same under the impugned Will. The said exchange is found to be not of comparable land. Thus, Niranjan Singh being interested witness, his testimony becomes doubtful. It has also come in evidence that defendant no.1 was also present at the time of execution of impugned Will. This circumstance further makes the Will suspicious. There was no reason why Chand Singh would execute a Will in favour of defendant no.1. Defendant no.1 tried to make out that he was rendering services to Chand Singh. However, it has come in evidence that one Jagsir Singh was rendering services to Chand Singh. Thus, defendant no.1 was not even rendering services to Chand Singh and there was no reason why Chand Singh would have executed Will in favour of defendant R. S. A. No. 2112 of 2011 6 no.1, to the exclusion of his own wives i.e. plaintiffs. It may also be added that defendant no.1 is resident of Village Jagmalwali, whereas Chand Singh was resident of Village Jhorar Rohi. Being of different villages, apparently, defendant no.1 could not have rendered effective services to Chand Singh in his old age. The Will has also been found to be suspicious because first page of the Will bears signatures of Niranjan Singh and Amar Nath – witnesses, while second page of the Will purports to bear thumb impression of plaintiff no.1. However, plaintiff no.1 has specifically denied her said thumb impression. Defendants did not get said thumb impression compared with specimen or standard thumb impression of plaintiff no.1. Witness Amar Nath of the Will is also of different Village and not from the Village of the testator. This is also a suspicious circumstance about the Will. All the aforesaid circumstances clearly depict that the Will is highly suspicious. Defendant no.1-appellant, who is propounder of the Will, has failed to remove the aforesaid suspicions about the Will. Circumstances noticed herein before, taken individually or in isolation, may or may not be sufficient to create doubt about the Will, but all these circumstances, considered cumulatively, certainly make the Will suspicious, and therefore, the Will has been rightly discarded by the courts below. Concurrent finding recorded by both the courts below discarding the Will is fully justified by the evidence on record and is R. S. A. No. 2112 of 2011 7 supported by cogent reasons recorded by the courts below. The said finding is not depicted to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence so as to call for interference in second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is dismissed in limine being devoid of merit. May 13, 2011 ( L. N. MITTAL ) monika JUDGE