R. S. A. No. 4967 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4967 of 2010 Date of Decision : February 17, 2011 Pritpal Singh .... Appellant Vs. Harbans Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Arihant Jain, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : By this common order, I am disposing of two appeals i.e. R. S. A. No. 4967 of 2010 and R. S. A. No. 322 of 2011 – both titled Pritpal Singh vs. Harbans Singh and others. Both these appeals have arisen out of single suit. It appears that these two second appeals have been preferred because there were two first appeals against judgment and decree of the trial court. Suit was filed by Harbans Singh – respondent no.1/plaintiff against defendant no.1/appellant Pritpal Sngh and proforma respondents no.3 to 9 (defendants no.3 to 9) and Smt. Jawali Kaur – defendant no.2 R. S. A. No. 4967 of 2010 2 (since deceased). Jawali Kaur was mother of the plaintiff and remaining defendants, whereas Uttam Chand was their father. The dispute relates to inheritance of the estate of Uttam Chand. The plaintiff alleged that he and all the defendants being sons, daughters and widow of Uttam Chand, are his natural legal heirs. Consequently, plaintiff claimed 1/10th share in the estate of Uttam Chand. Only defendants no.2 to 5 and 7 contested the suit, whereas remaining defendants were proceeded ex-parte. Contesting defendants alleged that Uttam Chand executed registered Will dated 07.01.1997 in favour of defendant no.2 (wife of Uttam Chand) and consequently, on the death of Uttam Chand, defendant no.2 alone has become owner in possession of the suit property left by Uttam Chand. Mutation of agricultural land has also been sanctioned in her favour. Plaintiff was having inimical relationship with Desa Singh – defendant no.9. They had civil and criminal litigation. Defendant no.2 claimed to be exclusive owner in possession of the suit property. Various other pleas were also raised. Learned Civil Judge (Junior Division), Patiala, vide judgment and decree dated 27.09.2006, decreed the plaintiff's suit and also passed preliminary decree for partition of the residential house. Against judgment and decree of the trial court, two first appeals were preferred. One appeal was preferred by defendant no.1 Pritpal Singh, whereas another appeal was preferred by defendants no.2 to 5 and 7. It appears that during pendency of R. S. A. No. 4967 of 2010 3 the said first appeals, defendant no.2 Jawali Kaur died and all the remaining parties were impleaded as her legal representatives. Learned Additional District Judge, Patiala, vide common judgment dated 26.04.2010, dismissed both the said appeals. Feeling aggrieved, defendant no.1 only has filed the instant both second appeals. I have heard learned counsel for the appellant and perused the case files. Defendants set up Will allegedly executed by Uttam Chand in favour of defendant no.2. However, the said Will has not been proved as no attesting witness of the said Will has been examined. In view of Section 63 (c) of the Indian Succession Act, 1925 read with Section 68 of the Evidence Act, it was mandatory to examine at least one attesting witness of the Will to prove the same. In view of non-compliance of the said mandatory provision of law, it is manifest that the said Will has not been proved. Consequently, concurrent finding of the courts below to this effect does not warrant any interference in second appeal. Once it is held that the Will set up by the defendants is not proved, property left by Uttam Chand devolved upon all his natural legal heirs i.e. plaintiff and all the nine defendants in equal shares being Class-I heirs. Consequently, the plaintiff inherited 1/10th share in the estate left by Uttam Chand. Plaintiff's suit has, therefore, been rightly decreed by the courts below. Since Will has not been proved in accordance with mandatory provision of law, nothing in fact survives for R. S. A. No. 4967 of 2010 4 determination or adjudication in the instant second appeals. It may also be noticed that defendant no.1 – appellant did not even contest the suit and was proceeded ex-parte in the trial court. However, defendant no.1 is one of the legal representatives of defendant no.2, who had contested the suit. For the reasons aforesaid, I find no merit in these second appeals. No question of law, much less substantial question of law, arises for determination in these second appeals. Both the appeals are accordingly dismissed in limine. February 17, 2011 ( L. N. MITTAL ) monika JUDGE