RSA NOS.1284 & 1285 OF 2008 (O&M) :1: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 8.7.2008 1.RSA No.1284 of 2008 (O&M) (Ranjit Singh & Others vs. Sukhraj Kaur and another) 2.RSA No.1285 of 2008 (O&M) (Ranjit Singh & Others vs. Sukhraj Kaur and another) CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.Karamvir Singh, Advocate for appellant Permod Kohli, J. (Oral) CM No.3784-C/2008 in RSA No.1284 of 2008 This is an application for condonation of delay in re-filing the appeal. For the reasons recorded therein, delay in re-filing is condoned. CM disposed of. CM No.3795-C/2008 in RSA No.1284/2008 This is an application for impleadment of the L.Rs of Ranjit Singh, plaintiff/appellant no.1 who died after the filing of this appeal. The application is supported with affidavit. For the reasons recorded therein, L.Rs of Ranjit Singh-plaintiff mentioned in para 1 of this application are taken on record subject to all just exceptions and they are permitted to file this appeal. RSA NOS.1284 & 1285 OF 2008 (O&M) :2: CM No.3787-C/2008 in RSA No.1285 of 2008 This is an application for condonation of delay in re-filing the appeal. For the reasons recorded therein, delay in re-filing is condoned. CM disposed of. CM No.3798-C/2008 in RSA No.1285/2008 This is an application for impleadment of the L.Rs of Ranjit Singh, plaintiff/appellant no.1 who died after the filing of this appeal. The application is supported with affidavit. For the reasons recorded therein, L.Rs of Ranjit Singh-plaintiff mentioned in para 1 of this application are taken on record subject to all just exceptions and they are permitted to file this appeal. RSA Nos.1284 & 1285 of 2008 This order will dispose of RSA Nos.1284 and 1285 of 2008 as common questions of law and facts are involved in both these appeals. Appellants are plaintiffs in the suit. Plaintiffs no.1 and 2 and defendant no.2 are real brothers whereas plaintiffs no.3 and 4 are the sisters, defendant no.3 is mother. Defendant no.1 is the wife of defendant no.2. Plaintiffs filed the suit challenging the sale deed executed by defendant no.3 in favour of defendant no.1 on the ground that the same has been obtained as a result of fraud, misrepresentation and coercion and is without consideration. They also claimed share in the property on the basis of natural succession. The defendants resisted the suit denying the allegations. They also pleaded that the suit is premature. During RSA NOS.1284 & 1285 OF 2008 (O&M) :3: the pendency of the suit, defendant no.3 died and the defendants no.1 and 2 set up a will executed by defendant no.3 in favour of defendant no.2. It has been pleaded that defendant no.3 was residing with defendants no.1 and 2 and in consideration of the services rendered by defendants no.1 and 2, defendant no.3 has executed the will in favour of defendant no.2, her son. On the basis of the pleadings of the parties, following issues were framed:- 1.Whether the registered sale deed dated 27.11.1986 alleged to have been executed by defendant no.3 in favour of defendant no.1 in respect of the suit property is illegal, null and void and the same does not confer any title in favour of the defendant no.1, if so its effect? OPP 2) If issue no.1 is proved, whether the plaintiff is entitled to declaration, as prayed for? OPP 3)Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP 4)Whether Smt. Ram Kaur executed valid and registered Will in favour of defendant no.2 on 18.2.1986, if so, its effect? OPD 5.Whether defendant no.1 purchased the suit land measuring 39 kanals 15 marlas from one Ram Kaur through registered Sale deed dated 27.11.1996 for consideration? OPD 6.Whether defendants nos.1 and 2 are entitled RSA NOS.1284 & 1285 OF 2008 (O&M) :4: for counter claim to the effect that defendant no.2 Surjit Singh is owner in possession regarding 1/6th share out of total 490 kanals 4 marlas fully detailed in the counter claim filed by defendants nos.1 and 2? OPD 7.Whether the suit is barred by the principle of resjudicata? OPD 8) Relief. Parties led their respective evidence. During the course of hearing, defendants no.1 and 2 gave up their claim on the basis of the sale deed and claimed the property through the will dated 18.2.1986. Defendants also filed a counter claim seeking a decree for share in the landed property claiming 1/6th share out of the land measuring 940 kanals and 4 marlas specified in the counter claim preferred by defendant no.2. The trial court took up issue no.4 for consideration. It has been recorded that PW2-Mohar Singh, scribe of the will in his testimony proved the will and its execution by defendant no.3. The will has also been entered in the register of the scribe which also bears the signature of deceased Ram Kaur, defendant no.3 as also the marginal witnesses. Scribe specifically stated that the will was prepared at the instance of Ram Kaur and it was read over and explained to her and thereafter she put her thumb impression on the will as also in the register. Marginal witnesses also signed the will as also the register of the scribe. To the same effect are the statements of DW2 Gurcharan Singh and DW4 Thakur Singh, the marginal witnesses to the will. Defendants RSA NOS.1284 & 1285 OF 2008 (O&M) :5: no.1 and 2 also led evidence to prove that defendant no.3 was living with them and they were looking after her needs and necessity of life. On the basis of the evidence recorded, the trial court came to the categorical findings that the defendants have successfully proved the execution of the will by deceased Ram Kaur and there is no suspicious circumstance. While arriving at this conclusion, it has also been recorded that the deceased has specifically mentioned in the will that her daughters are married and she is living with the defendants no.1 and 2 and thus there were sufficient circumstances for excluding the plaintiffs from the inheritance of the property. The suit of the plaintiff/appellants herein came to be dismissed vide judgment and decree dated 24.10.2005 and the counter claims of defendant no.2 have been decreed by the trial court. The plaintiffs preferred two appeals being CA Nos.128 and 127 of 2005 re-numbered as RT.FTC No.80/2006 and 81/2005 in the Court of Additional District Judge (Ad hoc) Fast Track Court, Muktsar. The lower appellate court also scanned the evidence and found that the will being registered and duly proved by the scribe and the witness is a valid document. Resultantly, the appeals were dismissed vide judgment and decree dated 26.10.2006 by affirming the findings of the trial court, both on the question of validity of will and the counter claim. The present appeals have been preferred against the judgments and decrees of the courts below. Mr.Singla, learned counsel for the appellants/plaintiffs has contended that the defendants have failed to establish the due RSA NOS.1284 & 1285 OF 2008 (O&M) :6: execution of the will as required under Section 63 of the Indian Succession Act. He has relied upon the judgments in the cases of Dhaman v. Jiya Lall and others, AIR 2005 Punjab and Haryana 191, Janki Narayan Bhoir v. Narayan Mandeo Kadam, 2003 AIR (SC) 761, Moonga Devi and others v. Radha Ballabh, AIR 1972 Supreme Court 1471 and Joginder Singh alias Rajinder Singh v. Dharuv Singh, (P&H), 2003 (3) PLR 545 to argue that the marginal witnesses must state that the testator signed the will in their presence, but in the present case, in the statements of the marginal witnesses, there is no such averment. I have carefully considered this aspect and also gone through the statement of the marginal witnesses reproduced in the memo of appeal. The marginal witnesses have specifically stated that the testators signed in their presence. To the same effect is the statement of the scribe. In my opinion, the argument is based upon total misinterpretation of the statements of the witnesses. The judgments relied upon by the learned counsel for the appellants have no application to the facts and circumstances of the present case. No substantial question of law arises. I find no merit in both the appeals which are accordingly dismissed. (PERMOD KOHLI) JUDGE 8.7..2008 MFK RSA NOS.1284 & 1285 OF 2008 (O&M) :7: RSA NOS.1284 & 1285 OF 2008 (O&M) :8: