RSA No.1096 of 1997 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh RSA No. 1096 of 1997 (O&M) Date of decision: April 28 ,2011 Pal Singh and others .....Appellants Versus Gurdip Singh and Others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.S.C.Chhabra,Advocate for the appellants. Mr.Vijay Sharma, Advocate for the respondents. **** SABINA, J. Plaintiffs had filed a suit for declaration that they were joint owners in possession of the suit land to the extent of 2/3rd share of deceased, Asso, widow of Ujagar Singh on the basis of the Will dated 30.1.1980. The case of the plaintiffs, in brief, was that Ishar Singh was owner of the suit land. He left behind his two sons, namely, Deva Singh and Fauja Singh. Deva Singh died leaving behind his son Ujagar Singh and daughters-Santo, Banto and Finni. Fauja Singh died leaving behind Nazar Singh, Chanchal Singh and Mangal Singh. RSA No.1096 of 1997 (O&M) 2 Plaintiffs No. 1 to 3 are the children of Santo-deceased daughter of Deva Singh. Asso, now deceased, was widow of Ujagar Singh. The pedigree table, as depicted in Annexure `A' to the plaint, is as under:- Isher Singh I I ------------------------------------------------------------------------- I I Fauja Singh Deva Singh I I I I ------------------------------------------------- I I I I I Nazar Singh Chanchal Singh Mangal Singh I (died issueless) (died) (died) I I ---------------------- I Pal Singh Jagir Singh Gujjar Singh I -------------------------------------------------------------------------------- Santo Banto Finni Ujagar Singh =Asso (died) (died issueless-wife deceased) I I ------------------------------------------------------------------- I I I I Gurdip Singh Gurnam Singh Surat Singh Nejo plaintiff plaintiff plaintiff Defendant” Ujagar Singh died issueless on 5.2.1980. He had executed a registered Will dated 30.1.1980 in favour of his wife Asso. Asso had been given limited interest in the suit property and after her death, the property had to be inherited by Santo, Banto and Finni in equal shares. Santo, daughter of Deva Singh had executed a registered Will dated 27.6. 1980 in favour of plaintiffs No. 1 to 3. Defendants No. 1 to 3 and 5, in their written statement, averred that Isher Singh was owner of the suit property and he had died leaving behind his heirs Deva Singh and Fauja Singh. It was averred that Ujagar Singh had not executed any Will in favour of his wife. In fact, Ujagar Singh had executed a Will dated 7.1.1980 in RSA No.1096 of 1997 (O&M) 3 favour of his wife and had given her limited interest in the suit property. After the death of Asso, Pal Singh, his nephew, was to inherit the suit property. On the pleadings of the parties, following issues were framed by the trial Court:- “1.Whether Ujagar Singh executed valid Will dated 30.1.1980?OPP 2.Whether Smt.Santo executed a valid Will dated 27.6.80?OPP 3.Whether plaintiff Finni since deceased executed a registered Will dated 16.12.88 in favour of plaintiffs No. 4A to 4C?OPP 4.Whether Ujagar Singh executed a valid Will dated 7.1.80?OPD 5.Whether the suit is barred by time?OPD 6. Whether the suit is not maintainable in the present form?OPD 7.Whether the plaintiffs are joint owners in possession of 2/3rd share of Asso and Ujagar Singh as claimed?OPP 8.Whether the plaintiffs are entitled to the relief of injunction as prayed for?OPP 9.Relief.” The trial Court, vide judgment and decree dated 22.1.1992, held as under:- “For the reasons recorded above, the suit of the plaintiffs partly fails in respect of 154 kanals 6 marlas of land described in head note (A) of the plaint situated at V.Chuchak Wind Tehsil Zira whereas the suit of the plaintiffs succeeds regarding 85 Kanals 15 marlas of land RSA No.1096 of 1997 (O&M) 4 described in head note (B) of the plaint situated at V.Rorriwala Tehsil Tarn Taran. I hereby dismiss the suit of the plaintiffs for declaration and permanent injunction in respect of 154 kanals 6 marlas of land described in head note (A) of the plaint situated at V.Chuchak Wind Tehsil Zira and I hereby decree the suit of the plaintiffs for declaration that plaintiffs No. 1 to 3 are owners of 1/6 share and plaintiffs No. 4(a) to 4(c) are the owners of 1/6 share (all the plaintiffs are owners of 1/3 share) out of 85 kanals 15 marlas of land described in head note (B) of the plaint situated at V.Rorriwala Tehsil Tarn Taran Distt. Amritsar. The suit of the plaintiffs is also decreed for permanent injunction restraining the defendants from dispossessing the plaintiffs from 85 kanals 15 marals of land situated at V.Rorriwala and the defendants are also further restrained from alienating 85 kanals 15 marlas of land situated at V.Rorriwala Tehsil Tarn Taran as fully described in head note (B) of the plaint. In view of the peculiar circumstances of the case, the parties are left to bear their own costs. Decree sheet be prepared. File be consigned to the record room.” Aggrieved by the said judgment and decree, plaintiffs preferred an appeal. Defendants No. 1 to 3 preferred the cross-objection. Vide judgment and decree dated 16.12.1996, the Additional District Judge held as under:- “In view of what has been discussed above and after setting aside the findings of the trial Court on issue no.6, I hereby RSA No.1096 of 1997 (O&M) 5 accept the appeal of the appellants-plaintiffs, set aside the impugned judgment and decree and the suit of the plaintiffs for declaration that they alongwith defendants No. 12(a) to 12(h) are joint owners in possession of ½ share once owned by Ujjagar Singh son of Deva Singh out of the land measuring 240 kanals 6 marlas as fully detailed in the head note (A) and (B) of the plaint and a decree for joint possession to the extent of 1/3rd share in favour of the plaintiffs No.1 to 3 and 1/3rd share in favour of plaintiffs No. 4(a) to 4(c) and 1/3rd share in favour of defendants no.12(a) to 12(h) out of the land measuring 240 kanals 6 marals as fully detailed in the heading of the plaint and a decree for permanent injunction restraining defendants No.2 to 11 from alienating any portion of the suit land to any person in any manner is hereby passed against defendants No. 1 to 3. The cross-objections filed by defendants No. 1 to 3 against the judgment and decree and objections on the findings on issues No. 8-A and 8-B are dismissed. However, the partes are left to bear their costs. Copy of the judgment be placed in the cross-objection. Lower Court record be returned and the appeal file be consigned to the record room”. Hence, the present appeal by defendants No. 1 to 3.. Learned counsel for the appellants has submitted that the plaintiffs had failed to establish the due execution of the Will dated 30.1.1980. In fact, Ujagar Singh had executed a Will dated 7.1.1980 and as per the same, Pal Singh, appellant No.1 was to inherit the suit RSA No.1096 of 1997 (O&M) 6 property, after the death of Asso, widow of Ujagar Singh. Learned counsel for the respondents-plaintiffs, on the other hand, has submitted that the plaintiffs were the children of sister of Ujagar Singh. The Will had been executed by Ujagar Singh in favour of his wife to a limited extent that she could utilize the suit property during her life time and after her death, the sisters of Ujagar Singh were to inherit the suit property in equal shares. The Will dated 30.1.1980, had been duly proved, to have been executed by Ujagar Singh, by the plaintiffs. The question that requires consideration is as to whether Ujagar Singh had executed the registered Will dated 30.1.1980.The said Will is a registered Will. Although the registration of the Will is not compulsory but it goes a long way in proving the genuineness of the Will. Will is a sacred document and speaks of mind of the executant after his death. In order to prove the due execution of the Will, the propounder of the Will is required to examine atleast one of the attesting witness to the Will in terms of Section 68 of the Evidence Act, 1872. The propounder of the Will is further required to establish that the Will in question is free from any suspicious circumstances. In the present case, the Will in question is Exhibit P2. The said Will had been attested by Lal Singh and Dula Singh. The Scribe of the Will-Harbans Lal was examined as PW3 and he deposed that he has scribed the Will at the instance of Ujagar Singh. He had read over the contents of the Will to Ujagar Singh and he had thumb marked the same in token of its correctness. The Will was scribed in the presence of Lal Singh and Dula Singh. He had also RSA No.1096 of 1997 (O&M) 7 made an entry in his register at serial no. 11 on 30.1.1980 qua the Will and the same was thumb marked by Ujagar Singh. As per the death certificate Exhibit P8, Dula Singh, attesting witness had died on 6.6.1980. As per the death certificate Exhibit P9, Lal Singh had died on 6.12.1989. Thus, the attesting witnesses could not be examined in the Court as they had already died. DW2 Sarwan Singh deposed that Lal Singh and Dula Singh had died. The said witness identified the signatures of Dula Singh on Will Exhibit P2. PW11 Sardara Singh, retired Tehsildar deposed that the Will Exhibit P2 had been registered by him. The contents of the same had been read over and explained to Ujagar Singh and,thereafter, Ujagar Singh had thumb marked the same in token of its correctness in his presence. Lal Singh and Dula Singh had also signed the endorsement in his presence. At that time, Ujagar Singh was fully in his senses. In his cross-examination, he had submitted that he know Lal Singh, Lambardar personally. Since in the present case, both the attesting witnesses had died and one of the witness DW2 examined by the defendants has identified the signatures of Dula Singh, the attesting witness on the Will, and further the Scribe and the Registering Authority have been examined by the plaintiffs who had deposed qua the execution and registration of the Will, the Courts below rightly held that the Will dated 30.1.1980 had been duly proved to have been executed by the executant-Ujagar Singh. Moreover, Ujagar Singh had made the Will in favour of his wife and after the death of his wife, in favour of his real sister. This makes the Will a natural document. A perusal of the RSA No.1096 of 1997 (O&M) 8 Will, Exhibit P2 reveals that the executant has stated in the Will Exhibit P2 that his nephews had got a Will executed from him by playing a fraud on him. The Will executed by the executant in favour of his nephews was cancelled and,thereafter, the Will Exhibit P2 was executed. The Courts below have rightly upheld the Will Exhibit P2. No substantial question of law arises in this appeal Dismissed. ( Sabina ) Judge April 28 ,2011 arya