RSA No. 3862 of 2008 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3862 of 2008 Date of Decision: 26.8.2009 Smt. Harbans Kaur and another ......Appellants Versus Surjan Singh .......Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri M.S. Khaira, Senior Advocate, with Shri Dharminder Singh, Advocate, for the appellants. HEMANT GUPTA, J. (Oral). The plaintiffs are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for declaration that they are owners in possession of 2/3rd i.e., 1/3rd each, of land measuring 240 kanals 9 marlas on the basis of Wills dated 17.6.1981 and 4.6.1987 executed by Bahal Singh, was dismissed. Bahal Singh, father of the parties was owner of the land measuring 240 kanals 9 marlas. The plaintiffs relied upon a registered Will dated 17.6.1981 and an unregistered Will dated 4.6.1987, claiming equal share in the estate of Bahal Singh along with defendant, whereas the defendant relied upon Will dated 9.4.1986 claiming the estate of Bahal Singh, exclusively. In the Will dated 4.6.1987 (Exhibit P.3) there is a recital regarding execution of the previous Wills dated 17.6.1981 and RSA No. 3862 of 2008 (2) 9.4.1986. Bahal Singh died on 10.8.1987. To prove the Will dated 4.6.1987, the plaintiffs have examined Bachan Singh, the attesting witness of the Will. PW2 is the scribe of the Will. Though the plaintiffs have examined N.K. Jain as PW5, but his report is restricted in respect of the Will dated 17.6.1981 (Exhibit P.1) and Will dated 9.4.1986 (Exhibit D.1). On the other hand, the Will dated 9.4.1986 Exhibit D.1 is proved by examining Ramesh Kumar Chawla, document writer. PW2 Pritam Singh is the attesting witness, whereas DW5 Anil Kumar Gupta, compared thumb impressions of Bahal Singh on the Will dated 4.6.1987 at Marks D.1 and D.2. Both the Courts have found that the Will dated 4.6.1987 Exhibit P.3 propounded by the plaintiffs is not proved to be executed. To return such finding, it has been found that the earlier two Wills are registered, which is a circumstance to show that such a testator would normally be expected to get the subsequent will registered as well. The learned first Appellate Court affirmed the finding recorded by the learned trial Court that the Will dated 4.6.1987 is not proved to be executed and that disinheriting the daughters by itself cannot be treated to be a suspicious circumstance in respect of the will dated 9.4.1986. Learned counsel for the appellants has vehemently argued that the expert produced by the parties have given contradictory reports in respect of the thumb impressions on the will Exhibit P.3. In such circumstances, the Court should have compared the thumb impressions to return a finding regarding the execution of said Will. Since the Courts have not compared the thumb impressions, the finding recorded by the Courts RSA No. 3862 of 2008 (3) below is not sustainable. The Will dated 4.6.1987 propounded by the plaintiffs recites execution of Will dated 9.4.1986. The said recital in the Will propounded by the plaintiffs shows the admission of execution of Will dated 9.4.1986. Even otherwise the said Will stands proved to be executed on the basis of statement of the scribe, attesting witnesses and the expert. PW5- N.K. Jain, has not compared the thumb impressions of the testator on Will dated 4.6.1987. Thus, there is only report of DW5-Anil Kumar Gupta, to the effect that Will dated 4.6.1987 is not proved to be executed. The finding recorded by the Courts below that the Will dated 4.6.1987 is not proved, is a finding of fact. It could not be pointed out that any evidence has been misread or not taken into consideration. Consequently, I do not find any patent illegality or material irregularity in the finding recorded or that the finding recorded gives rise to any substantial question of law in the present second appeal. Hence, the present appeal is dismissed. (HEMANT GUPTA) JUDGE 26.8.2009 ds