R.S.A. No.1053 of 2009 (O&M) & anr. -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.1053 of 2009 (O&M) and R.S.A. No.1074 of 2009 (O&M) DATE OF DECISION: AUGUST 24, 2011 Smt. Parkash Kaur and others .....APPELLANTS Versus Smt. Kartar Kaur ....RESPONDENT CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL --- Present: Mr. P.K. Ganga, Advocate, for the appellants. .. SATISH KUMAR MITTAL, J. This order shall dispose of two Regular Second Appeals bearing Nos.1053 and 1074 of 2009, which have been filed by Smt. Parkash Kaur and her children against the judgment and decree passed by both the Courts below, whereby two suits, one filed by Smt. Parkash Kaur and other and another by respondent Smt. Kartar Kaur, have been disposed of by common judgment. In this case, the dispute is about 88 Kanals of land situated in village Jhorarnali, Tehsil and District Sirsa, which was owned by one Jiwan Singh son of son of Gurditta Singh. Appellant Smt. Parkash Kaur is the widow of Kartar Singh, who was brother of Jiwan Singh and respondent R.S.A. No.1053 of 2009 (O&M) & anr. -2- Smt. Kartar Kaur is the sister of Jiwan Singh . After the death of Jiwan Singh (on 28.03.2001), the land in question was mutated in favour of Smt. Kartar Kaur vide Mutation No.3965 dated 13.06.2001 on the basis of natural succession being his 2nd class legal heir. Appellant Smt. Parkash Kaur and others claimed the property of Jiwan Singh on the basis of an unregistered will dated 2.9.2000 alleged to have been executed by Jiwan Singh in their favour. The said will was got registered by Smt. Parkash Kaur and others vide order dated 7.1.2003 after the death of Jiwan Singh. Thereafter Smt. Parkash Kaur and others filed civil suit for declaration challenging the aforesaid mutation dated 13.06.2001 in favour of Smt. Kartar Kaur being illegal and not binding on their rights, and restraining her from alienating or transferring or creating any charge over the suit land or interfering in their possession. The respondent Smt. Kartar Kaur also filed a suit for declaration against Smt. Parkash Kaur and others challenging the order dated 7.1.2003 passed by the revenue authority alleging therein that no will was ever executed by Jiwan Singh in favour of Smt. Parkash Kaur and others, and registration of the will by the Joint Sub Registrar, Sirsa was wholly illegal and the said order was liable to be set aside. The trial Court consolidated both the suits. Though various issues were framed, but the main issue was whether Jiwan Singh had executed a valid will in favour of Smt. Parkash Kaur and others. The trial Court after holding that no valid will was executed by Jiwan Singh in favour of Smt. Parkash Kaur and others, dismissed the suit of the appellants Smt. Parkash Kaur and others and decreed the suit filed by respondent Smt. R.S.A. No.1053 of 2009 (O&M) & anr. -3- Kartar Kaur while coming to the conclusion that the disputed land was rightly mutated in her favour on the basis of inheritance being 2nd class legal heir. The said judgment and decree was affirmed in appeal by the first Appellate Court. Appellants Smt. Parkash Kaur and others have filed these two appeals challenging the judgment and decree passed by both the Courts below. The learned counsel for the appellants assailed the judgments of both the Courts below on two counts. Firstly that the finding recorded by both the Courts below that the will dated 2.9.2000 has not been proved, is perverse and against the record and based upon misreading and misappreciation of evidence, hence, the same is liable to be set aside; and secondly that the appellants are also Class-II heirs and if it is taken that Jiwan Singh died in intestate, even then the appellants are also entitled to a share in the property of Jiwan Singh. After hearing the learned counsel for the appellants and going through the judgments of the Courts below, I do not find any merit in either of the contentions raised by the learned counsel. In my opinion, in the present case no substantial question of law is involved. In this case, both the Courts below have recorded a pure finding of fact to the effect that the appellants have failed to prove the valid execution of the will dated 2.9.2000 by Jiwan Singh in their favour. As required by Section 68 of the Indian Evidence Act, 1872, at least one of the attesting witness has to prove the contents and execution of the will. In this case, both the attesting witnesses, namely, Kundan Singh and Sukhdev Singh were examined in R.S.A. No.1053 of 2009 (O&M) & anr. -4- order to prove the will, but both the witnesses have categorically stated that the will in question was not executed in their presence. Rather, they deposed that they did not go to Sirsa regarding execution of the will in question. Not only this, the Courts below have also noticed that the alleged will is surrounded by suspicious circumstances because it was thumb marked by the testator, whereas as per the evidence led by the respondent Smt. Kartar Kaur, Jiwan Singh used to put his signatures in Urdu. During the course of arguments, it was specifically asked to the learned counsel to point out the portion of the judgment where the trial Court or the first Appellate Court have misread the evidence and have recorded a perverse finding. The learned counsel could not take the Court to any paragraph of the judgment to prove this and could not point out any illegality or perversity in the impugned judgment with regard to execution of the will. If the execution of the will has not been validly proved at all, there is no meaning of getting the said will registered after near-about two years of the death of Jiwan Singh. As far as the second contention of the learned counsel for the appellants is concerned, it is wholly devoid of merit. Undisputedly, respondent Smt. Kartar Kaur is the sister of Jiwan Singh. As per the Schedule annexed with the Hindu Succession Act, 1956 (hereinafter referred to as `the Succession Act'), she falls in entry II of Class-II heirs, whereas appellants No.2 to 5 (sons of appellant No.1-Smt. Parkash Kaur) fall under entry IV and Smt. Parkash Kaur (appellant No.1) falls in entry VI of Class-II heirs. As per Section 11 of the Succession Act, the property of an intestate shall be divided between the heirs specified in any one entry in Class II of the Schedule so that they share equally. Since appellants No.2 to R.S.A. No.1053 of 2009 (O&M) & anr. -5- 5 (sons of appellant No.1-Smt. Parkash Kaur) fall under entry IV and Smt. Parkash Kaur (appellant No.1) falls in entry VI of Class-II heirs, they cannot have any preference over a person who falls under entry II of Class-II heirs. Thus, in both the appeals, no substantial question of law is involved. Hence, both the appeals are dismissed. August 24, 2011 ( SATISH KUMAR MITTAL ) vkg JUDGE