RSA No.996 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.996 of 2010 (O & M) Date of Decision: 19.01.2011. Jagtar Singh .....Appellant Versus Mangat Saini and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Vipul Dharmani, Advocate for the appellant. Mr. Arvind Kashyap, Advocate for respondents. L. N. MITTAL, J (ORAL) Defendant-Jagtar Singh, who was successful in the trial Court, but has been unsuccessful in the lower appellate Court, has filed the instant second appeal. Respondents/plaintiffs, who are two sons and two daughters of Piare Lal Saini since deceased, filed suit against the defendant-appellant. Piare Lal Saini was owner of the suit property i.e 14/359 share in 17 kanals 19 marlas land. He had also raised construction of a house in his share. The plaintiffs' case is that being the only legal heirs of Piare Lal Saini, plaintiffs have inherited the suit property and have become its owners. The defendant, however, got sanctioned mutation on the basis of alleged Will dated 31.12.1997. However, no such Will was executed by Piare Lal Saini. The alleged Will is illegal, null and void and is forged and fabricated document. Plaintiffs accordingly sought declaration that they are owners of the RSA No.996 of 2010 (O & M) -2- suit property and mutation sanctioned on the basis of forged and fabricated Will in favour of defendant is null and void and not binding on the plaintiffs. Plaintiffs also sought permanent injunction restraining the defendant from interfering in plaintiffs' possession over the suit property and from alienating the same and in the alternative, for joint possession. Defendant while admitting that Piare Lal Saini was owner of the suit property and that plaintiffs are sons and daughters of the deceased Piare Lal Saini, broadly controverted the other plaint allegations. The defendant alleged that he had been rendering services to the deceased and is also closely related to him. Accordingly, Piare Lal Saini executed Will dated 31.12.1997 in favour of the defendant regarding the suit property. Piare Lal Saini died on 24.03.1998. After his death, the Will was got registered on 18.09.2000. In view of the Will, the defendant has become owner of the suit property and was already in its possession since during the life time of Piare Lal Saini. Mutation on the basis of Will has been rightly sanctioned. The Will is genuine, legal and valid and the mutation sanctioned on its basis is also legal and valid. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Anandpur Sahib vide judgment and decree dated 28.01.2009 dismissed the plaintiffs' suit. However, first appeal preferred by the plaintiffs has been allowed by learned Additional District Judge, Ad hoc, Fast Track Court, Ropar vide judgement and decree dated 30.11.2009 and thereby suit of the plaintiffs has been decreed. Feeling aggrieved, defendant has preferred the instant second RSA No.996 of 2010 (O & M) -3- appeal. I have heard learned counsel for the parties and perused the case file. It is not in dispute that plaintiffs are natural heirs of deceased Piare Lal Saini, who was owner of the suit property. Consequently, the central controversy to be adjudicated upon is regarding the Will set up by the defendant. The defendant has examined attesting witness of the said Will to prove the same. However, learned lower Appellate Court found many suspicious circumstances surrounding the said Will and, therefore, the said Will has been discarded. Learned counsel for the appellant vehemently contended that the defendant-appellant had been serving the deceased and for this reason, the aforesaid Will was executed in favour of the defendant-appellant. It was pointed out that the testator has mentioned in the Will that his issues are having his other property in village Munari. It was thus contended that the testator explained the reason for executing the Will. It was also submitted that plaintiff No.2, who was also attroney of the remaining plaintiffs, affirmed an affidavit, submitted before the revenue authority, that plaintiffs had no objection to sanctioning of the mutation on the basis of Will. On the other hand, learned counsel for the respondents referred to very suspicious circumstances noticed by the lower appellate Court regarding the Will. I have carefully considered the rival contentions. Defendant-appellant claimed that he was close relative of the testator. However, the defendant did not even specify his alleged RSA No.996 of 2010 (O & M) -4- close relationship with the testator. There is also no cogent evidence to prove any relationship whatsoever of the defendant-appellant with the testator. In these circumstances, execution of the impugned Will in favour of a total stranger to the exclusion of testator's own sons and daughters is a grave suspicious circumstance surrounding the impugned Will. The contention that other property in village Munari was left for the plaintiffs also does not help the appellant because existence and value of the said property has not come on record. On the other hand, counsel for respondents submitted that the property of Piare Lal Sain in Village Munari was being taken over by the Bank for recovery of its debts due from the deceased Piare Lal Saini. However, in the absence of evidence, this contention of counsel for respondents also cannot be accepted. At the same time, the alleged property of village Munari cannot be a good explanation for excluding the testator's own sons and daughters from the suit property by bequeathing it in favour of a stranger, for alleged services rendered by the appellant to the deceased testator. Moreover, consent decree regarding some other property of the deceased Piare Lal Saini had also been suffered in favour of the defendant-appellant as per his own version. It is also significant to notice that the alleged Will is dated 31.12.1997 and Piare Lal Saini-testator died on 24.03.1998, but the will was got registered on 18.09.2000 i.e 2 ½ years after the death of the deceased. It is also worth mentioning that the Will was scribed by layman and not by professional Deed Writer. It has come in evidence that one cousin of Piare Lal RSA No.996 of 2010 (O & M) -5- Saini-testator is a practicing advocate at Anandpur Sahib. It has also come in evidence that the deceased had cordial relationship with the plaintiffs. The Will is, therefore, shrouded with so many suspicious circumstances. As regards alleged affidavit of plaintiff No.2, who was allegedly also attorney of the other plaintiffs, affirming genuineness of the impugned Will, the said affidavit has not been proved. Alleged original affidavit had not seen the light of the day. In these circumstances, non-appearance of plaintiff No.2 himself in the witness box pales into insignificance when the original affidavit, was not available and was not even put to plaintiff No.1, who appeared in the witness box. Photostat copy of the affidavit could not be proved without obtaining permission for secondary evidence which was never sought. Even otherwise, alleged affidavit has not been proved in any manner. So the same cannot be relied on. For the reasons aforesaid, I find no illegality or perversity in the finding of the lower appellate Court that the impugned Will is surrounded with suspicious circumstances. The same has, therefore, been rightly discarded. Aforesaid finding of the lower appellate Court does not warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is thus found to be without any merit and is accordingly dismissed. 19.01.2011. ( L. N. MITTAL ) A. Kaundal JUDGE