RSA No.639 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.639 of 2010 Date of Decision: 11.02.2010 Savitri .……Appellant Versus Sandeep and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Deepak Balyan, Advocate for the appellant. L. N. MITTAL, J (ORAL) This is second appeal by plaintiff No.1 Savitri, who along with plaintiff No.2 Bimla proforma respondent No.8, remained unsuccessful in both the Courts below. Plaintiffs filed suit challenging Will dated 08.05.2001 allegedly executed by plaintiffs’ father Lal Chand in favour of his grand son Sandeep-defendant-respondent No.1 and also challenged the consequent mutation. Respondent Nos.2 to 7 were impleaded as proforma-defendant Nos.2 to 7. Defendant Nos.1 and 4 to 7 contested the suit and inter alia pleaded that Lal Chand executed valid Will dated 08.05.2001 in favour of defendant No.1. However, relationship of the parties with Lal Chand since deceased was admitted. It was admitted that Lal Chand was owner of the suit land and he died on 15.08.2001. It was, however, pleaded that in view of Will executed by Lal Chand, defendant No.1 Sandeep became owner in possession of the suit land left by Lal Chand and, therefore, plaintiffs have not inherited any RSA No.639 of 2010 -2- share in the suit land from Lal Chand. Learned Additional Civil Judge (Senior Division), Bahadurgarh vide judgment and decree dated 10.01.2005 dismissed the suit of the plaintiffs. First appeal preferred by plaintiffs has been dismissed by learned Additional District Judge (Adhoc), Jhajjar vide judgment and decree dated 24.09.2008. Feeling aggrieved, only plaintiff No.1 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. In order to prove the Will, the defendants examined scribe of the Will as well as one attesting witness of the Will, as witnesses. They have proved due execution of the Will by Lal Chand. Rajender Singh DW-4, one of the two attesting witnesses of the Will, is a Lambardar. The Will was also got registered. Registration Clerk has also been examined as witness to prove the Registration of the Will. In view of this evidence, both the Courts below have arrived at concurrent finding that execution of Will dated 08.05.2001 by Lal Chand in favour of defendant No.1 is proved and the said Will is legal and valid. Even appellant-plaintiff No.1 in cross-examination stated that they learnt of the Will, when hip of the testator got fractured. According to plaint, fracture had taken place in March, 2001. However, by then, even the Will had not been executed as it was executed on 08.05.2001. The fact, however, remains that plaintiff No.1 has admitted that they learnt of the Will during life time of their father. Inspite thereof, the Will was not got cancelled by the testator. It would lead to the inference that the testator had voluntarily RSA No.639 of 2010 -3- executed the Will because otherwise the plaintiffs, who are none else but daughters of the testator, would have prevailed upon their father to get the Will cancelled if he had not executed it voluntarily. Even Daya Nand PW-3, who is husband of defendant No.2 - another sister of the plaintiffs, has stated that he had also learnt of the Will during the life time of Lal Chand about a week prior to his death. Thus execution of Will by Lal Chand in favour of defendant No.1 Sandeep became known to plaintiffs even during the life time of Lal Chand. It would again point out to the valid execution of the Will by Lal Chand voluntarily. Registration of the Will further lends credence to the version of defendant No.1 regarding the Will. Learned counsel for the appellant vehemently contended that propounder of Will-defendant No.1 took active part in the execution of the Will and, therefore, it is a suspicious circumstance. Reliance in support of this contention has been placed on two judgment of this Court Ram Kishan and others versus Shrimati Ram Piari, 1997 P.L.J 100 and Kartar Singh and another versus Dilber Singh (Dead) Through Legal Representatives, 2009-4 PLR 1. I have carefully considered the contention, but find no force therein. It is correct that according to evidence pointed out by counsel for the appellant, defendant No.1 beneficiary of the Will took part in the execution of the Will. However, this circumstance alone is not sufficient to discard the Will. Even in the judgments cited by learned counsel for the appellant, it was said to be only one of the circumstances to make the Will suspicious, but it was not held that this circumstance alone would invalidate the same. On the contrary, in the reported cases, there were so many suspicious circumstances RSA No.639 of 2010 -4- including the aforesaid one and for all those suspicious circumstances, the Will was discarded in those cases. In addition thereto, in both the said cases, there was concurrent finding of fact by both the Courts below that the Will was suspicious. Consequently in second appeal, the said finding was not reversed by this Court in the aforesaid judgments. In the instant case, however, there is concurrent finding of fact by both the Courts below regarding legal and valid execution of the Will by Lal Chand. Consequently, the said finding cannot be reversed merely on the ground that defendant No.1 took active part in the execution of the Will by the testator. Learned counsel for the appellant also contended that no reason has been assigned in the Will for disinheriting the plaintiffs and defendant Nos.2 and 3, who are daughters of the testator. The reason is not far to seek. Defendant No.1 beneficiary of the Will is grandson of the testator Lal Chand. It appears from the array of parties that Lal Chand had only one son Devbir, who also had only one son Sandeep Defendant No.1. It is not uncommon to exclude females from the line of succession and to retain the land in male line of succession. Consequently, the Will cannot be said to be unnatural. It may be added that all the 4 daughters of the testator i.e plaintiffs and defendant Nos.2 and 3 already stood married. Learned counsel for the appellant next contended that name of the testator has not been mentioned on the side of his thumb impression on the Will. It is, however, not a suspicious circumstance because the word ‘Wasiyat Karta’ (testator) has been typed below which the thumb impression has been affixed and it would depict that the thumb impression is of the testator Lal Chand. RSA No.639 of 2010 -5- Learned counsel for the appellant also contended that the testator used to affix signatures and it is not explained why he affixed thumb impression on the Will. The contention is beyond pleadings. Even otherwise, it is not uncommon to obtain thumb impression on such documents even if the executant otherwise affixed signatures. Science of finger print comparison is a prefect science and identity of thumb impression can be established beyond doubt, but in the case of signatures, the other side may dispute the genuineness of the signatures. To ensure that the Will is not defeated on any such ground, thumb impression might have been obtained on the Will. As noticed hereinabove, there is concurrent finding of fact by both the Courts below on proper appreciation of evidence that valid and legal Will has been duly proved. The said finding is not shown to be perverse or illegal in any manner. No substantial question of law arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed in limine. ( L. N. MITTAL ) JUDGE 11.02.2010 A. Kaundal