RSA No. 1537 of 2008 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 1537 of 2008 Date of decision: November 10,2008 Jang Bahadur and others ..Appellants. Versus Manjit Kaur ..Respondent Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. R.P.Kansal, Advocate for the Appellants. Mr.Munish Gupta, Advocate for the Caveator-respondent. .. Rakesh Kumar Garg,J. This is defendant's second appeal challenging the judgment and decrees of the courts below whereby suit filed by the plaintiff for joint possession as owner of the property in dispute and for permanent injunction restraining the defendants from alienating,transferring,mortgaging or creating any sort of charge whatsoever over the said land has been decreed. Briefly stated the case of the plaintiff is that she is the daughter of Karnail Singh son of Harcharan Singh resident of village Chhoti Jhakian, Tehsil and District Ropar and defendant No.2 is son of Karnail Singh and defendant No.3 is widow of Karnail Singh. The plea of the plaintiff is that she is widow of Jagtar Singh son of Karnail Singh who is suffering from AIDs before his marriage which took place on 15.12.2000 and lateron he died on 21.8.2002. No issue was born out of their wedlock. Due to this disease of the husband of the plaintiff, she is also suffering from the said disease which came to her knowledge after the death of her husband. It is further averred that during the life time of Jagtar Singh, the plaintiff was residing at village Chhoti Jhakian with her husband and other family members. After the death of her husband, she is residing at village Paprala with her parents who are bearing all the expenses for the treatment of the plaintiff. After the death of her husband, the father in law of the plaintiff Shri RSA No. 1537 of 2008 2 Karnail Singh died on 14.7.2003 at village Chhoti Jhakian. The plaintiff and defendants are the legal heirs of the deceased and she being the widow of deceased son of Karnail Singh has one fourth share in the suit land as she has stepped into the shoes of her husband after her death. Defendants No.1 to 3 are alleging a Will in their favour and on the basis thereof, they got the mutation of inheritance sanctioned in their name as per the alleged Will dated 29.12.2002. The alleged Will dated 29.12.2002 is wrong, illegal, null and void having no effect on the rights of the plaintiff to the suit property. Karnail Singh never executed any document in favour of any body. He was having love and affection towards the plaintiff and he was served by Jagtar Singh and the plaintiff during his life time. The said Will is forged by the beneficiaries in connivance with the witnesses. Mutation No.395 dated 24.9.2005 is illegal and the same is liable to be rejected. The plaintiff requested the defendants to admit her claim, but to no effect. Hence this suit. Defendants No.1 to 3 filed joint written statement seriously contesting the claim of the plaintiff. By way of preliminary objections, they have challenged the maintainability of the suit in the present form; the plaintiff being estopped by her own act and conduct from filing the suit as she left the house of the defendants after the death of Jagtar Singh and took away the entire house hold articles according to panchayat compromise. Deceased Karnail Singh executed a valid Will dated 29.12.2002 regarding his own property in favour of the defendants and this fact is also to the knowledge of the plaintiff and the plaintiff also admitted the said Will to be correct before Assistant Collector Ist Grade (Tehsildar) Ropar. It has been asserted that since Karnail Singh has left behind a valid Will dated 29.12.2002 regarding inheritance to his estate, the plaintiff has got no right in the property left behind by deceased Karnail Singh. All other material averments of the plaintiff have been denied and prayed for dismissal of the suit with costs. After hearing learned counsel for the parties and appreciating matter in controversy in light of the material available on record, the trial Court RSA No. 1537 of 2008 3 recorded a finding on issue No.3 against the defendant while issues No.1 and 2 have been decided in favour of the plaintiff and as a result thereof, the suit filed by the plaintiff was decreed with costs to the effect that she is entitled to joint possession to the extent of one fourth share out of one third share of deceased Karnail Singh out of the suit property and the defendants are restrained from alienating or disposing of the share of the plaintiff out of the suit property. Feeling aggrieved against the aforesaid findings of the trial Court, defendants filed an appeal, which was dismissed by the Additional District Judge, Ropar vide judgment and decree dated 14.2.2008. Still not satisfied, the defendants have filed the instant appeal in this Court challenging the aforesaid judgment and decrees of the courts below. Learned counsel for the appellant has vehemently argued that the courts below have erred at law while holding that the Will executed by Karnail Singh deceased is full of suspicious circumstances and the same has been discarded without their being any cogent reason. It has also been argued by him that the plaintiff-respondent is not entitled to any share in the property of deceased Karnail Singh as she left her matrimonial home during life time of deceased Karnail Singh as per the compromise Ex.P2 which is fully proved on record and as per settled proposition of law, the Court is not expert to give such opinion without there being any report of expert. In support of his arguments, learned counsel for the appellant has placed reliance upon a judgment of the Hon'ble Gauhati High Court cited as Shyam Sunder Chowkhani alias Chandan and others Versus Kajal Kanti Biswas and others AIR 1999 Gauhati 101 and of the Hon'ble Supreme Court in O. Bharathan Vs. K. Sudhakaran and another AIR 1996 Supreme Court 1140. On the other hand, learned counsel for the respondent has supported the findings of the courts below and has argued that no substantial question of law arises in this appeal and a finding of fact has been recorded by the courts below on appreciation of evidence and therefore, the appeal is liable to be dismissed. RSA No. 1537 of 2008 4 I have heard learned counsel for the parties and perused the record. From the perusal of the pleadings of the parties as well as oral and documentary evidence led on record, there remains no dispute about this fact that deceased Karnail Singh, the owner of the suit land had three sons namely Jang Bahadur, Lakhbir Singh and Jagtar Singh. Jagtar Singh, one of the sons of Karnail Singh died during his life time. Even there is no dispute about this fact that Manjait Kaur plaintiff is the widow of said Jagatar Singh meaning thereby that she is the wife of predeceased son of Karnail Singh. Karnail Singh at the time of death left behind four class-1 heirs i.e., two sons namely Jang Bahadur and Lakhbir Singh and his widow Nasib Kaur, (defendants) and Manjit Kaur plaintiff being the widow of his pre deceased son Jagtar Singh. Keeping in view the provisions of Hindu Succession Act, all the Class I heirs of deceased were entitled to one fourth share each out of the share of deceased Karnail Singh in the suit land. The only controversy involved in the present case is as to whether deceased Karnail Singh left behind a testament regarding the manner in which his estate is to devolve on his death. The defendants have propounded a will dated 29.12.2002 purported to be executed by deceased Karnail Singh during his life time. There cannot be any dispute about the settled position of law that the party who sets up a Will, has to prove the same in accordance with law and to dispel all the suspicious circumstances, if any, surrounding the said testament. in order to satisfy the conscience of the court that the Will in question actually represents the true and genuine expression of the wish of the deceased as to how his property is to be dealt with after his death, because the testator does not remain available for examination before the court. In order to discharge onus to prove the Will in question, the appellants have examined Gurvinder Singh scribe of the Will and Didar Singh one of the attesting witnesses of the will. Gurvinder Singh appeared in the witness box to prove that the Will in question was scribed by him and the same RSA No. 1537 of 2008 5 was signed by the deceased with his free will and signed in the presence of the attesting witnesses and he identified his signatures on the said Will. The said witness has not stated that he signed the Will as an attesting witness, therefore, the testimony of Gurvinder Singh cannot be used in order to prove the Will as required under Section 63 of the Indian Succession Act, 1925. The judgment of the Hon'ble Supreme Court of India in the case of Mathew Oommen Vs. Suseela Mathew, 2006(1) Civil Court Cases 527 (SC) is of no help to the appellant. In that case, the scribe had categorically stated that he has signed as an attestator and scribe, which is not the case in hand, therefore, the testimony of Gurvinder Singh cannot be taken benefit of, by the appellant in order to say that since he has signed the Will, he is to be taken as one of the attesting witnesses of the Will. The appellants also examined Didar Singh one of the attesting witnesses of the Will. The said witness is conspicuously silent if the Will in question was also signed by other attesting witness Harvinder Singh in his presence. The witness has only stated that the Testator put his signatures on the Will in English in his presence and in the presence of other attesting witness but his testimony is conspicuously silent about this Will being signed by other witness. Thus the statement of Didar Singh is not sufficient to prove that the Will in question was actually attested by other witness Harvinder Singh. Harvinder Singh, the other marginal witness has not been examined in this case. Keeping in view the testimony of Didar Singh, the lower Appellate Court held that the testator of the Will Ex.D1 has failed to prove the attestation of this Will by him and Harvinder Singh and further his testimony is not worthy of credence and reliance, to prove the Will. From the perusal of judgment of the trial Court, it is clear that the trial Court has discarded the Will in question with the observations that the same is surrounded by suspicious circumstances. In fact the trial Court has recorded its reasoning on the basis of which the Will in question has been branded to be surrounded by suspicious circumstances. The trial Court has failed to take into consideration certain other material facts which further create suspicion RSA No. 1537 of 2008 6 regarding the correctness and genuineness of the alleged testament. Jang Bahadur, one of the beneficiaries under this Will has admitted that he was present at the time of execution of Will by the deceased. It has also come on record during the cross-examination of the witnesses that another son of the deceased had called the attesting witnesses meaning thereby that the beneficiaries have taken an active part in the preparation of this document which creates further suspicion regarding the Will in question to be representing the genuine expression of the heart felt wish of deceased Karnail Singh. The lower Appellate Court referred to the cross-examination of Jang Bahadur and Gurvinder Singh and held that from the facts culled out from their statements, these two witnesses are sufficient to demolish the version of the defendants that since the deceased did not have cordial relations with his son Jagtar Singh or his wife plaintiff Manjit Kaur and for that reason, he excluded plaintiff Manjit Kaur, wife of his pre-deceased son from his inheritance. The lower Appellate Court also found cuttings and over writing on the Will in dispute which is not a registered document. The court also found that the scribe could not explain as to under what circumstances, this over writing happened. The court also compared the signatures of Karnail Singh on the Will Ex.D1 and found that they do not tally with the purported signatures of Karnail Singh deceased on document mark 'A' relied upon by defendant/appellant and held that the Will was not left behind by the deceased but the same has been prepared after his death in order to deprive plaintiff Manjit Kaur to inherit to the Estate of deceased. The judgments relied upon by the counsel for the appellant are of no help to him. In Shyam Sunder Chowkhani alias Chandan and others Vs. Kajal Kanti Biswas and others AIR 1999 Gauhati 101, there was no other evidence and the court based his opinion solely on his own comparison of signatures on the document in question and in those circumstances, the court held that the court cannot base its finding solely on the opinion of the hand writing expert. In the present case, in addition to the opinion of the court with regard to the similarities in the disputed signatures of the deceased Karnail Singh, there is RSA No. 1537 of 2008 7 other material on record to base its opinion with regard to the disputed signatures by the court. The judgment of the Hon'ble Apex Court in O. Bharathan's case (supra) is also of no help to the appellants. The facts of this case are distinguishable from the facts in hand. In the aforesaid case, hundreds of signatures were disputed in an election petition and in the peculiar facts circumstances of that case, the Hon'ble Apex Court held as under:- “Annulling the verdict of popular Will is as much a serious matter of grave concern to the society as enforcement of laws pertaining to criminal offences, if not more. Though it is the province of the expert to act as Judge or jury after a scientific comparison of the disputed signatures with admitted signatures, the caution administered by this Court is to the course to be adopted in such situations could not have been ignored unmindful of the serious repercussions arising out of the decision to the ultimately rendered.” The Apex Court in the case of Lalit Popli Versus Canara Bank and others 2003(3)SCC 583 has held that the Court can make its opinion itself from the material available on record with regard to the genuineness of the disputed signatures. In view of the above discussion, there is no merit in the argument raised by learned counsel for the appellant. Thus in the light of the evidence on record, I am of the considered opinion that the appellants have failed to lead cogent , convincing and fool proof evidence on record to prove the execution of the Will in question by the deceased in accordance with law and further to dispel the suspicious circumstances surrounding this Will. Therefore, the learned courts below have rightly discarded the Will propounded by the appellants. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. November 10, 2008 (RAKESH KUMAR GARG) nk JUDGE