R.S.A.No. 2632 of 2005 (O&M) {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2632 of 2005 (O&M) Date of Decision:August 04, 2009 Ranjit Singh and others ---Appellants versus Zora Singh and another ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr. P.S.Bhangu, Advocate, for the appellants Mr.V.M.Gupta, Advocate, for the respondents. *** SABINA J. Plaintiffs had filed a suit for declaration. Additional Civil Judge (Senior Division),Ropar vide judgment and decree dated 27.9.2002 dismissed the suit of the plaintiffs. Aggrieved by the same, plaintiffs preferred an appeal and the same was dismissed by Additional District Judge-cum Presiding Officer (Fast Track Court),Rupnagar vide judgment and decree dated 28.2.2005. Hence, the present appeal. The facts of the case as noticed by the learned Additional District Judge(Fast Track Court), in paras 2 to 4 of its judgment read as R.S.A.No. 2632 of 2005 (O&M) {2} under:- “The brief facts of this case are that plaintiffs-appellants have filed a suit for declaration to the effect that they are owners and in possession of the suit land measuring 42 kanal 10 marlas situated at village Mehrampur as detailed in the head note of the plaint on the basis of a registered will dated 10.11.1995 executed by their grand father Basta Singh their favour. The plaintiffs/appellants further stated in the plaint that Basta Singh was the owner of the suit property and Basta Singh had three sons namely Gurmel Singh, Narang Singh and Zora Singh and one daughter namely Jaswant Kaur. Gurmel Singh died as bachelor and before the death of Basta Singh. The defendant was in service and remained away from the village and he had not served his father Basta Singh. Basta Singh was residing with the plaintiffs/appellants. Due to the services rendered by the plaintiffs to Basta Singh and due to love and affection, Basta Singh executed a will in favour of the plaintiffs and last rites of Basta Singh was performed by them ad the plaintiffs are owners and in cultivating possession of the suit land on the basis of a registered will in their favour and mutation was wrongly and illegally sanctioned in favour of the defendant to the extent of one half of the suit land. So on the basis of will dated 10.11.1995 the plaintiffs/appellants claimed ownership and possession over the suit property. Notice of the suit was given to the defendant who appeared and filed written statement vide which he claimed R.S.A.No. 2632 of 2005 (O&M) {3} that the simple suit for declaration is not maintainable as the plaintiffs/appellants are not in possession of the suit property. The relationship is admitted. “the defendant/respondent denied the fact that Basta Singh was looked after or served by the plaintiffs/appellants. Rather Basta Singh was served by the de3fendant/respondent and the will was ignored by the revenue authorities and the mutation of inheritance of “Basta Singh was sanctioned on 25.4.1997 in favour of Narang Singh and Zora Singh. The will is a forged one and the suit property is Joint Hindu Family and Coparcenaries property and the defendant/respondent prayed for the dismissal of the suit.” On the pleadings of the parties, trial court framed the following issues:- “(1)Whether Basta Singh executed a Will dated 10.11.1995 in favour of the plaintiffs? OPP (2)Whether the plaintiffs are entitled to the relief of declaration as prayed for? OPP (3)Whether the suit is maintainable? OPD (4)Relief Following Additional issued were also framed by the learned trial court on 8.1.2002 and 18.7.2002.:- (3.A) If issue No. 1 is proved then whether the Will is the result of fraud and misrepresentation? OPD (3.B)Whether the property is Hindu Joint Family and coparcenary property? OPP Learned counsel for the appellants has submitted that the courts R.S.A.No. 2632 of 2005 (O&M) {4} below had erred in disbelieving the Will executed by Basta Singh in favour of the plaintiffs. The Will, in question, dated 10.11.1995 was a duly registered document and proved by the plaintiffs. Plaintiffs are grand sons of Basta Singh and the executant was residing with the plaintiffs. The executant was being served by the plaintiffs in every possible way and the executant having been satisfied with the services rendered by the plaintiffs, had executed the Will in their favour. In support of his arguments learned counsel for the appellants has placed reliance on Ramabai Padamakar Patil(Dead) through L.Rs. And others vs. Rukminibai Vishnu Vekhande and others (2003)8 Supreme Court Cases 537 wherein it has been held that a Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. In case a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that propounder of the Will has to remove all suspicious circumstances. The fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. Learned counsel for the respondent, on the other hand has submitted that the Will, in question, itself shows that the executant was 90 years old at the time of execution of the Will and he died within 15 days of the execution of the Will. No reasons had been given as to why the other heirs of the executant had been deprived from inheritance. A Will is a document that speaks of the mind of the deceased after his death. The executant of the Will is though never available for R.S.A.No. 2632 of 2005 (O&M) {5} deposing as to under what circumstances, he has executed the Will. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will. A Will is required to be proved like any other document. Since the Will is required to be attested and as per Section 68 of the Indian Evidence Act, 1872, at least one attesting witness is required to be examined to prove due execution of the Will. The attesting witness is required to establish that the Will in question was executed by the testator in the presence of attesting witnesses and they had attested the same in the presence of the testator. In a case where the Will is a registered document then the endorsement made by the Sub Registrar that the Will had been thumb marked or signed by the executant in his presence after it was read over to the executant has a presumption of truth. It is also a settled proposition of law that in connection with Wills execution of which is alleged to be surrounded by suspicious circumstances, the test of satisfaction of judicial conscience has been evolved. That test emphasis that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances, the Court has to be fully satisfied that the Will has been validly executed by the testator. In the present case, Will, in question, dated 10.11.1995 is Ex. P-2. A perusal of the same reveals that Basta Singh, who was 90 years old had bequeathed his entire property in favour of Ranjit Singh, Darshan Singh and Avtar Singh, sons of Norang Singh son of the executant. R.S.A.No. 2632 of 2005 (O&M) {6} Although in technical sense, the plaintiffs had been successful in proving the due execution of the Will. Moreover, in the present case, the Will in question is a registered document. The question that further requires consideration is as to whether the Will in question, was surrounded by any suspicious circumstances and satisfies the test of judicial conscience. A perusal of the Will, in question, reveals that the executant has not talked about his other legal heirs at all in the Will in question. Admittedly, Basta Singh was having three sons. Zora Singh-defendant is also one of the sons of the executant. The plaintiffs are the sons of Norang Singh son of the executant. Third son of the executant had pre-deceased him. No reason had been given by the executant in the Will, in question, as to why he was depriving his son Zora Singh from his property. Learned counsel for the appellants has failed to point out any thing from the record which would establish that the relations between Zora Singh and the executant were not cordial. DW-4 Mohan Singh had deposed that he had brought the register for immersion of the ashes of dead persons maintained by Gurudwara Patalpuri Sahib at Kiratpur Sahib. Entry regarding immersion of ashes of Basta Singh by Zora Singh was at Sr. No. 51804. As per the said entry Basta Singh had died on 29.11.1995. This shows that the defendant was having cordial relations with his father and performed the ceremony of immersion of ashes of Basta Singh at Kiratpur Sahib. Basta Singh had died after about two weeks of the execution of the Will. The Will in question was executed on 10.11.1995 whereas Basta Singh died on 29.11.1995. In these circumstances, the courts below had rightly held that the executant, who was 90 years old at the time of alleged execution of the Will, had not executed the same of his free disposing mind. R.S.A.No. 2632 of 2005 (O&M) {7} The judgment relied upon by learned counsel for the appellants fails to advance the case of the appellants as it is based on different facts. It would have been a different case if some reasons had been given by the executant for excluding his other legal heirs from inheriting his property. However, in the present case, no reasons have been given at all as to why other legal heirs were being deprived of share in the property of the deceased. This shows that the Will, in question, was not executed by the executant of his free disposing mind. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE August 04, 2009 PARAMJIT