R.S.A. No. 542 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 542 of 2010 (O&M) Date of decision : 28.2.2011 Mahipal Singh ......Appellant Versus Harpal Singh and others .......Respondents ***** CORAM: HON'BLE MRS. JUSTICE SABINA Present : Mr. Sanjay Mittal, Advocate, for the appellant. **** SABINA, J. Plaintiff had filed a suit for declaration and permanent injunction. The case of the plaintiff, in brief, was that the parties are closely related to each other. The pedigree table as reproduced in para 2 of the judgment of the First Appellate Court reads as under :- Gopal Singh ----------------------------------------------------------------- I I Jagmal Singh Colonel Shri Ram I I Harpal Dharampal Mahipal Ajaypal Kamla Saraswati Santosh Sharda I @ Malkhan I I R.S.A. No. 542 of 2010 (O&M) 2 ---------------------Defendant no.2 to 7 ------------------------- I I I I ------------------------------------------------------------------------------------------ I I I I I I I Ram Sat Kaushal Narender Usha Pushpa Madhu Pal Pal Pal Pal --------------------------Defendants no.8 to 14-------------------------- The residential property situated within the abadi dehi of village was ancestral property of Gopal Singh. After the death of Gopal Singh, his son Jagmal Singh became owner of ½ share and Shri Ram became owner of the remaining ½ share of the suit property. Jagmal Singh had already died and the plaintiff and defendants No.1 to 7 were his legal heirs. Defendants No.8 to 14 were the legal heirs of Shri Ram. Plaintiff had got 1/16 share in the suit property and the remaining 7/16 share was owned and possessed by defendants No.1 to 7. Defendants No.2 had set up a Will dated 1.10.1993 qua land measuring 13 kanals 2 marlas in his favour. The said Will was illegal, null and void. Hence, the suit was filed by the plaintiff. Defendant No.1, in his written statement, claimed that the Will was illegal and was liable to be set aside. Defendants No.3 and 8 to 14 admitted the claim of the plaintiff and averred that the Will in question was a forged document. Defendant No.2, in his written statement, averred that the Will was a genuine document. The suit property was self acquired property of deceased Jagmal Singh. The Will had been accepted by the Civil Court in R.S.A. No. 542 of 2010 (O&M) 3 case titled as “Jagmal Singh Vs. Haryana State” and on the basis of the said Will Mahipal was held to be legal heir of deceased Jagmal Singh. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the will dated 1.10.1993 is illegal forged null and void and not binding on the rights of the plaintiff ? OPP. 2. Whether the plaintiff is entitled for decree for injunction as prayed for ? OPP. 3. Whether the suit is not maintainable in the present form ? OPD. 4. Whether the plaintiff is estopped by his own act and conduct for filing the present suit ? OPD. 5. Relief.” The trial Court vide judgment and decree dated 4.8.2005 partly decreed the suit of the plaintiff. It was held that the Will dated 1.10.1993 was not binding on the rights of the plaintiff. Defendant No.2 was restrained from alienating haveli situated in village Nangli Godha in favour of any person on the basis of the Will in question. Defendant No.2 was, however, permitted to alienate his share in the haveli. Suit of the plaintiff qua agricultural land bearing mustil no. 39 killa no. 3/3, 4/1, 7/3 and 8/1 was dismissed as neither the plaintiff nor his father had any right, title or interest in the said land. Aggrieved by the said judgment and decree defendant No.2 preferred an appeal and the same was dismissed by Additional District Judge Rewari vide judgment and decree dated 13.8.2009. Hence, the present appeal by defendant No.2. R.S.A. No. 542 of 2010 (O&M) 4 After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. Section 68 of the Indian Evidence Act, 1872 reads as under :- “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 the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]” In the present case the plaintiff had averred that the Will dated 1.10.1993 was not a genuine document. The said Will was allegedly executed by the deceased Jagmal Singh in favour of defendant No.2. In order to prove the due execution of the Will defendant No.2 was required to examine at least one of the attesting witness to the Will. However, defendant No.2 failed to examine any of the attesting witness to the Will to prove the due execution of the Will. Hence, in view of Section 68 of the R.S.A. No. 542 of 2010 (O&M) 5 Indian Evidence Act, 1872, the Will in question had been rightly held to be not proved by the Courts below. Even the original Will was not proved on record. Admittedly, in the earlier suit filed by Jagmal Singh, the validity of the Will dated 1.10.1993 was not in question. No substantial question of law arises in this appeal which would warrant interference by this Court. Dismissed. (SABINA) JUDGE February 28, 2011 Anand