RSA No.1748 of 1985 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.1748 of 1985 Date of decision : 20.04.2011 Dalip Singh …Appellant Versus Smt. Chameli and others …Respondents CORAM : HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present : Shri Kuldeep Singh, Advocate for the appellant. Shri J.S. Thind, Advocate, for Smt. Chameli and Shri Jai Singh, respondents. JITENDRA CHAUHAN, J. 1. Dalip Singh, appellant, has preferred this regular second appeal No.1748 of 1985 against the judgment and decrees of the Courts below by which the suit of Dalip Singh, Dharam Singh and Balbir Singh, plaintiffs, was dismissed. 2. One Kanwar Singh was owner-in-possession of land measuring 42 kanals 2 marlas situated at Village Amin, Tehsil and Distt. Karnal. He died issueless on 21.08.1979. He executed a legal and valid Will dated 14.06.1979 in favour of Smt. Chameli and Jai Singh in the presence of Barmanand and Babu Ram, attesting witnesses, duly scribed by Jeet Singh, DW-2, the Deed Writer. The Will was duly registered on 14.06.1979. 3. This Will was challenged by the other legal heirs in Civil Suit No.383 of 1980 on the ground that the testator was incompetent to execute the Will as the land was ancestral. According to the custom, no Will could RSA No.1748 of 1985 -2- be executed in respect of the ancestral property. It is alleged that the Will, Ex.D1, is the result of fraud and misrepresentation. 4. The defendants contested the suit on the ground that Kanwar Singh had executed legal and valid ‘Will’, in his sound disposing mind which was duly registered. 5. From the pleadings of the parties, the following issues were framed:- 1. Whether the suit land was ancestral of Kanwar Singh ? OPP 2. Whether the plaintiffs defendants and Kanwar Singh were governed by custom in the matters of succession and if so what that custom is and to what effect ? OPP 3. Whether Kanwar Singh has executed any legal and valid Will ? OPD 1 & 2 4. If issue No.3 is proved whether the Will was obtained from Kanwar Singh as a result of fraud, misrepresentation, if so its effect ? OPP 5. Whether the plaintiffs and defendants are legal heirs and entitled to inherit the property of Kanwar Singh as alleged in para No.3 of the plaint ? OPP 6. Whether the plaintiffs are estopped from filing the present suit by their own act and conduct ? OPD 7. Whether the plaintiffs have got cause of action to bring the suit ? OPP 8. Whether the suit is not maintainable in the present form ? OPD RSA No.1748 of 1985 -3- 9. Whether the suit is properly valued for purposes of Court fee and jurisdiction ? OPP 10. Relief. 6. The learned trial Court dismissed the suit holding that the land was proved to be ancestral but no custom governing the parties was proved. The learned trial Court also held that the Will, Ex.D1, is legal and valid Will and was executed by the testator in sound disposing mind and it is not surrounded by any suspicious circumstances. The possibility of fraud was also ruled out. The other issues are insignificant. 7. Dharam Singh, appellant, preferred appeal against the judgment and decree dated 28.08.1982 of the trial Court by which the suit was dismissed. The learned Additional District Judge dismissed the appeal on 15.02.1985 affirming the findings of the trial Court on issues No.1 to 5. 8. Dharam Singh, appellant, came up in this regular second appeal against the judgments and decrees of both the Courts below. 9. Mr. Kuldeep Singh, Advocate, learned counsel for the appellant argued that the Will is surrounded by suspicious circumstances. One of the attesting witnesses of the Will is the real brother of Chameli Devi, the beneficiary. He further argued that the beneficiary, Smt. Chameli Devi took active part in the registration of the Will, and thus, the testator was under the influence of the beneficiary. 10. On the other hand, Shri J.S. Thind, learned counsel for the respondent has drawn my attention to Annexure A-2, the original agreement executed by Dalip Singh on 12.03.1996, placed on the file of this Court, admitting the genuineness of the Will and promised to withdraw this regular RSA No.1748 of 1985 -4- second appeal. The counsel for the respondent further argued that whether the Will is valid is a question of fact and not a question of law. There is a concurrent finding of facts of both the Courts below. He prays for dismissal of this regular second appeal. 11. I have heard the learned counsel for the parties and have gone through the trial Court record with their able assistance. 12. In Rur Singh Vs. Bachan Kaur, 2009(2) RCR (Civil) 511, it has been held that one of the attesting witness was son of the testator and was also a beneficiary and it was not held to be a suspicious circumstances in the facts of the case. In this case, it has also been held that determination of the validity of the Will is a question of fact and not a question of law and therefore, the same cannot be gone into in a regular second appeal. 13. This Court has perused the entire record and came to the conclusion that Kanwar Singh, deceased, had executed Will Ex.D1, in his sound disposing mind in favour of Smt. Chameli Devi and Jai Singh. There is no material discrepancy in the statements of the witnesses nor there is any suspicious circumstance surrounding the Will, Ex.D1. 14. Moreover, original agreement, Annexure A-2, executed by Dalip Singh, has been placed on the file of this regular second appeal wherein, the appellant admits the validity and genuineness of Will Ex.D1. He promised to withdraw the appeal. He is estopped by his conduct by executing the agreement, Annexure A-2, to raise the question the validity of the Will. 15. Keeping in view the facts and circumstances of the present case, this Court is of the opinion that no substantial question of law arises RSA No.1748 of 1985 -5- for determination of this Court. There is no scope to interfere in the concurrent findings of facts arrived by the Courts below. 16. Accordingly, this regular appeal No.1748 of 1985 fails and is hereby dismissed. 20.4.2011 (JITENDRA CHAUHAN) atulsethi JUDGE Note : Whether to be referred to reporter :YES/ NO