RSA No.2776 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2776 of 1984 Date of decision 2.5.2011 Smt.Parshotam Rani through LRs. Appellants v. Parkasho through LRs. Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. Sarwan Singh,Sr.Advocate with Mr.N.S.Rapri,Advocate for the appellants Mr.D.S.Bali,Sr.Advocate with Ms.Neha Mann,Advocate for the respondents .... JITENDRA CHAUHAN.J This regular second appeal has been filed against the judgment and decree dated 24.8.1984 passed by learned First Appellate Court, whereby the judgment and decree dated 30.1.1981 passed by the learned trial Court were set aside. Parshotam Rani-the appellant filed a suit for joint possession as owner of suit land and 1/4th share of house detailed in Para B, of the head note of the plaint. Baldev Singh,the father of the appellant-Parshotam Rani was the owner of the suit property,whereas RSA No.2776 of 1984 2 Parkasho,the respondent (defendant No.1) was his widow. He died on 27.10.1978. The appellant and the defendant Nos.1,2 & 3 were entitled to succeed to the estate of Baldev Singh to the extent of 1/4th share each. After the death of Baldev Singh on 27.10.1978 Smt.,Parkasho-defendant No.1, widow of Baldev Singh forcibly took the possession of the suit land. Smt.Parkasho alleged that Baldev Singh had executed a Will in her favour and the mutation was sanctioned in her name.In the joint written statement filed by defendant Nos. 1 to 3,it was stated that Baldev Singh executed a Will dated 8.10.1978 in favour of Parkasho,the defendant No.1 ,therefore, the other heirs are not entitled to the estate of Baldev Singh. The said Will was executed by Baldev Singh on 8.10.1978 in favour of his wife Parkasho in sound disposing mind. From the pleadings of the parties, the following issues were framed:- 1. Whether Baldev Singh, deceased, executed a valid will dated 8.10.1978 in favour of defendant No. 1 ? OPD 2. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the civil court has no jurisdiction to try and entertain this suit? OPD 5. Relief The Ld.trial court decided issue No. 1 against the RSA No.2776 of 1984 3 defendant No.1 Parkasho and held that the Will was fabricated by defendant No.1 in connivance with Jagdish Kumar DW3, Jagta, DW4 and Sadhu Singh. The Ld.Ist Appellate Court reversed the findings of the Ld.trial court and allowed the appeal filed by Smt. Parkasho. Aggrieved by which, the appellant Parshotam Rani has preferred this appeal. Learned counsel for the appellant argued that the Will dated 8.10.1978 is surrounded by suspicious circumstances as the witnesses were not from the same village and the suit was rightly decreed by the trial court in favour of the appellant and the ld.Ist Appellate Court has committed an error in setting aside the decree and judgment passed by the ld. Trial court. He has further argued that Baldev Singh, the testator was not in sound disposing mind at the time of executing the Will. He stated that the joining of attesting witnesses Jagdish Kumar, DW3 and Jagta DW4 further fortify suspicion and thus the Will in dispute is fabricated by the respondent-Parkasho in connivance with these witnesses. On the other hand, learned counsel for the respondents vehemently argued that Baldev Singh, the testator had executed the Will in favour of Smt.Parkasho,his wife in sound disposing mind. RSA No.2776 of 1984 4 He further submitted that Jagdish Kumar, scribe of the Will was the clerk of an Advocate and it is not a good ground to doubt the genuineness of the Will. He argued that in the same manner testimony of Jagta DW4 , who attested the Will cannot be doubted, as he being as labourer had dealing with the family of Baldev Singh. He further submitted that the Ld. Ist Appellate Court rightly reversed the findings of the ld.trial court. I have heard the learned counsel for the parties and perused the record with their able assistance. The suit was filed on 8.4.1980 by the appellant. Mutation was sanctioned on 21.3.1979. Baldev Singh died on 27.10.1978 leaving behind his widow Parkasho and three daughters Parshotam Rani, Tripta Rani and Amrita Rani. The Will in dispute was executed on 8.10.1978. Parshotam Rani objected to the mutation on the basis of the Will stating that the Will was a fictitious one and that she is entitled to inherit 1/4th share of the property of her father. Jagdish Kumar,DW3 who scribed the Will Ex.D-3 has stated that the Will was scribed by him under the instructions of Baldev Singh on 8.10.1978. It was read over to Baldev Singh who put his thumb impression on the same in the presence of marginal RSA No.2776 of 1984 5 witnesses Jagta, DW4 and Sadhu Singh, who were present at that time. He further stated that Baldev Singh was in a sound disposing mind at that time. He has admitted the fact that he was not a licensed deed writer and that he has not scribed any other Will. He admitted that the Will was scribed in Village Sanawa and Baldev Singh was ill and was on the bed in the courtyard of his house. DW4 Jagta, the attesting witness has submitted that the Will,Ex.D3 was scribed by Jagdish Kumar. Baldev Singh was suffering from paralysis and that while lying on the bed, Baldev Singh instructed Jagdish Kumar to scribe the Will in favour of his wife Smt.Parkasho. The said Will was attested by DW4 Jagta and Sadhu Singh. Cogent reasons have been mentioned in the Will that the wife Parkasho, served Baldev Singh till last and that she had to make the arrangement for the marriage of one of their unmarried daughter. The other reason given in the Will was that Raj Kumari, daughter of appellant Parshotam Rani had been staying with Baldev Singh and Parkasho and they had borne out all the expenses of her upbringing and for this reason, the Will was executed in favour of his wife. From the above,it is clear that Baldev Singh executed the RSA No.2776 of 1984 6 Will in favour of his wife when he was in sound disposing mind. The logic that an ill person is not mentally alert does not appeal to reason. There is no substance in the argument of the learned counsel for the appellant that the fact of attesting witnesses to the Will from the other village is a suspicious circumstance. The circumstances that the Will is unregistered, there being no witness from the locality and disinheriting his three daughters are not suspicious circumstances in this case, as in many cases, often Will is not registered, if it is within the family and such persons are called to attest it in whom the testator had confidence and faith, even if they may be residing at some distant places. Divesting or disinheriting the daughters being the purpose of the Will is not a suspicious circumstances. Good reasons existed for bequeathing the property by way of Will Ex.D3 in favour of his wife especially when there is no son of Baldev Singh and Parkasho who served Baldev Singh till his death. As per settled law, it is not necessary that the witnesses must be from the same village. This is not a suspicious circumstance to the execution of the Will. It has come in the testimony of Parkasho that she was not present at the time of execution of the RSA No.2776 of 1984 7 Will. However, she further stated that Sadhu Singh, the attesting witness was having land adjacent to their land and Jagdish Kumar was a family friend and he used to visit the family. Therefore, they are not the strangers. Though the Will was unregistered but it was a genuine Will. In this context, reference may be made to the provisions of The Indian Evidence Act, which are reproduced hereunder:- 68.Proof of execution of document required by law to be attested- If a document is required by law to be attested,it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.” {Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with he provisions of the Indian Registration Act,1908 (16 of 1908),unless its execution by the person by whom it purports to have been executred is RSA No.2776 of 1984 8 specifically denied.} 118. Who may testify.--All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether or body or mind, or an,y other cause of the same kind.” As per requirement of sections 68 and 118 of the Indian Evidence Act, it cannot be said that the Will is surrounded by suspicious circumstances and it has been scribed and attested by the strangers. In the circumstances, no substantial question of law is involved in the present appeal. Accordingly, the same is dismissed. The decree and judgment dated 24.8.1984 passed by ld. Ist Appellate Court are affirmed. (JITENDRA CHAUHAN)) 2.5.2011 JUDGE MS Note:Whether to be referred to Reporter? Yes/No.