RSA No.4404 of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.4404 of 2002. Date of decision August 18, 2009 Tajinder Singh .....APPELLANT VERSUS Chander Kanta @ Rattan Chand and others .....RESPONDENTS CORAM: HON'BLE MR JUSTICE T.P.S.MANN PRESENT: Mr Parveen Kumar, Advocate for the appellant. Mr Shailendra Jain, Advocate for respondent Nos. 1 to 11. T.P.S.MANN, J. Suit filed by respondent Nos. 1 to 11 was decreed by learned Civil Judge (Sr. Division), Gurdaspur on 28.9.1996 and they were declared joint owners in possession in equal shares of land, measuring 218 kanals 6 marlas. The defendants were restrained from illegally and forcibly dispossessing them from the suit land, except in due course of law. The aforementioned judgement and decree was challenged by Gian Singh and Tajinder Singh, defendants, by filing the first appeal which was dismissed by learned Additional District Judge, Gurdaspur on 28.1.2002. Aggrieved of the same, Tajinder Singh, defendant, has filed the present second appeal under Section 100 of the Code of Civil Procedure. According to the plaintiffs, they were entitled to succeed to the estate of their uncle Prabh Dayal, who died issueless. However, the RSA No.4404 of 2002 -2- contesting defendants, namely, Gian Singh and Tajinder Singh claimed that Prabh Dayal had entered a religious sect and during his life time, he had executed an unregistered Will dated 9.6.1988 in favour of Ashram Dera Baba Chet Ram and both the contesting defendants were the executors of the Will. They denied the right, title or interest of the plaintiffs in the suit land. The relationship of the plaintiffs with deceased Prabh Dayal stands admitted and so also the ownership of the suit property, besides the date of death of Prabh Dayal. The only controversy between the parties relates to the validity of the Will Ex.D1. After going through the evidence led by the parties, learned trial Court listed the various infirmities in the Will Ex.D1 to hold that the contesting defendants failed to prove its due execution. These infirmities were as follows: “(i) The natural heirs have been deprived and no reasons have been mentioned in it. Chander Kumar the alleged scribe of the alleged Will Ex.D1 is of doubtful integrity. He is also not a licensed deed writer. (ii) It has not been proved on the file that Dera Baba Chet Ram, Chhon is not juristic person. There is no mention in the Will. So the Will is void under section 112 of the Indian Succession Act. (iii) It has been mentioned in the Will that Prabh Dayal was Bal Brahmchari but from the evidence on the file and document Ex.P3, it is clear that Prabh Dayal was married before his death and as such there is wrong recital in the Will. (iv) Mulkh Raj was the trusted person of Prabh Dayal as is clear from sale deeds Exs.D5 to Ex.D8 where Mulkh RSA No.4404 of 2002 -3- Raj appeared on behalf of Prabh Dayal and he was the best person to prove the Will Ex.D1, but he has not been produced for the reasons best known to the defendants. (v) Mangat Ram has denied the execution of the Will Ex.D1 by Prabh Dayal in his presence in favour of anyone. (vi) Chander Kumar Deed Writer (DW2) stated that in his register he obtained the signatures of Budha Singh Lambardar, Mulkh Raj and Daljit Singh. Sh. Sukhdev Singh and Mangat Ram did not sign his register, but there are five attesting witnesses of alleged Will Ex.D1. (vii) As per submission made by Budha Singh he was a chance witness and belong to different village. (viii)Admittedly, there are Deed Writers at Sub Tehsil Kalanaur and Chhon is near at Kalanaur but the alleged Will was not got scribed from Kalanaur. (ix) The Will is unregistered document and this also renders the Will to be of doubtful nature. (x) Somti Parkash defendant No.4 filed the written statement disowning the Will Ex.D1 and the Will has only been contested by defendants No.1 &2. (xi) It is in the statement of Puran Chand (DW-8) that Prabh Dayal had cordial relations with his nephews and this admission on the part of the witness of the defendants also renders the Will Ex.D1 to be of suspicious nature. RSA No.4404 of 2002 -4- (xii) It is also in the statement of Surta Singh (DW-4) that he is living in the dera but he owns 18 acres of land in village Shallay Chak. So natural presumption is that a farmer owning land would not reside at a Dera and would reside in his village for managing his land and this fact is supported by voter list Ex.P4 wherein Surta Singh is shown to be living in village Shallay Chak.” The learned lower appellate Court, in para 10 of its judgment, upheld the findings arrived at by the learned trial Court by observing that the comprehensive infirmities certainly aggravated the ingenuineness of the Will. The findings of facts arrived at by the learned Courts below were based on proper analysis of the evidence on record., These findings do not suffer from any perversity, illegality or infirmity. They cannot be set aside in a second appeal, which is maintainable only on some substantial question of law and not otherwise. The substantial question of law, as framed by the appellant, does not arise for determination as the findings of facts were based on proper reading and appreciation of evidence on the record. Resultantly, there is no merit in the appeal, and, it is, thus, dismissed. (T.P.S.MANN) August 18, 2009 JUDGE Pds RSA No.4404 of 2002 -5-