In the High Court of Punjab and Haryana at Chandigarh ...... R.S.A. No.4199 of 2006 ..... Date of decision:15.5.2008 Ranjit Singh .....Appellant v. Daljit Kaur alias Manjit Kaur and others .....Respondents .... Present: Mr. G.S. Punia, Advocate for the appellant. Mr. T.P.S. Tung, Advocate for respondent No.1. ..... S.S. Saron, J. (Oral) This appeal has been filed by Ranjit Singh one of the LRs of Bachan Kaur (plaintiff) against the judgment and decree dated 10.11.2006 passed by the learned District Judge, Fatehgarh Sahib whereby the appeal filed by the defendant-Daljit Kaur against the judgment and decree dated 8.6.2004 passed by the learned Additional Civil Judge (Senior Division), Amloh has been allowed and the suit of the plaintiff-appellant been dismissed with costs. Smt. Bachan Kaur-plaintiff (since deceased) filed a suit for declaration to the effect that she is the owner of ½ share of the estate left by her son Ujjagar Singh who died on 28.10.1997. The case of the plaintiff is that she is the mother of the deceased Ujjagar Singh and defendant Daljit Kaur, who is the daughter of Ujjagar Singh, had got mutation of the properties of Ujjagar Singh sanctioned in her favour on the basis of some R.S.A. No.4199 of 2006 [2] document. The defendant on appearance set-up a Will dated 22.8.1997 which was registered on 1.9.1997. In terms of the Will, the entire property owned by Ujjagar Singh had been bequeathed in her favour. The plaintiff in fact was also aware of the execution of the Will. Mutation had also been sanctioned. Learned trial Court on the basis of evidence and material on record held the Will to be surrounded by suspicious circumstances. The learned lower appellate Court, however, held the Will to be valid. Bachan Kaur had died and the appeal has been filed by Ranjit Singh, the grand-son of Smt. Bachan Kaur, who claims to be the LR of Smt. Bachan Kaur on the basis of Will executed by Bachan Kaur in his favour. The other respondents No.2 to 11 are the natural heirs of Smt. Bachan Kaur. Learned counsel for the appellant has strenuously contended that the Will executed by Ujjagar Singh set up by the defendant-Daljit Kaur is surrounded by suspicious circumstances. It is stated that Jagdish Singh, the marginal witness of the Will did not remember the date on which the Will was executed. Mohinder Singh, the other marginal witness was not examined in the case. It is submitted that it is for the defendant-respondent to examine said Mohinder Singh in order to prove the Will set-up by her. Besides, the learned lower appellate Court held that the plaintiff could have examined Mohinder Singh in her evidence to disprove the execution of the Will. It is submitted that the learned lower appellate Court has set aside the findings and conclusions reached at by the learned trial Court and has upheld the Will of Ujjagar Singh and has held it to be valid. It is also submitted that it has come in evidence that Ujjagar Singh, the testator of the Will dated 22.8.1997, could not move about and despite that he had gone on R.S.A. No.4199 of 2006 [3] his own on 22.8.1997 to fetch a witness and scribe and again on 1.9.1997 appeared before the Sub Registrar, Mandi Gobindgarh for registration of the Will. This, it is contended, by itself creates suspicious circumstances as regards the due execution of the Will. In response, learned counsel appearing for the defendant- respondent No.1 has submitted that Ujjagar Singh had only one daughter and his wife had pre-deceased him. Therefore, it was natural for Ujjagar Singh to have executed the Will in favour of his daughter so as to prevent the property going in the hands of his brothers and sisters after the demise of his mother Smt. Bachan Kaur-plaintiff. It is also contended that the Will has been proved on record by the evidence of Jagdish Singh and Sub- Registrar who appeared in the case. Besides, it is contended that Mohinder Singh, witness was not examined as he in a Police inquiry with regard to the Will had deposed an affidavit that the will does not bear his signatures. Therefore, it is submitted that in case the affidavit was set-up by the plaintiff, then it was for her to produce Mohinder Singh and examine him. After giving my thoughtful consideration to the matter, as has already been noticed, Ujjagar Singh, whose estate is in dispute, executed a Will dated 22.8.1997 which was registered on 1.9.1997 in favour of his daughter Daljit Kaur-defendant. Smt. Bachan Kaur, the mother of the deceased Ujjagar Singh claimed property to the extent of ½ share. The learned trial Court held that the Will of Ujjagar Singh was surrounded by suspicious circumstances. The learned lower appellate Court, however, held the Will to be duly executed. The Will is a registered document which has been thumb marked by the testator Ujjagar Singh. One of the marginal R.S.A. No.4199 of 2006 [4] witnesses, namely, Jagdish Singh has proved the Will. The Sub Registrar has also proved the due execution of the Will and the appearance of the testator before him. Mohinder Singh, the other witness was not examined by the defendant on the ground that a case has been got registered by the plaintiff with regard to the Will. During inquiry by the Police in a criminal case registered against the propounder of the Will i.e. the defendant, Mohinder Singh gave an affidavit that the Will does not bear his signatures. The counsel for the plaintiff-appellant has contended that it was for the defendant to produce Mohinder Singh and that the learned lower appellate Court has held that the plaintiff should have examined Mohinder Singh in her evidence to disprove the execution of the Will. The said observations are in the context that the plaintiff had placed on record an affidavit alleged to have been executed by Mohinder Singh in the Police inquiry. As per the affidavit Ujjagar Singh had not thumb marked any Will in his presence. It was noticed that the said affidavit failed to advance the case of the plaintiff to the effect that the attesting witness Mohinder Singh was not present at the time of execution of the Will. It was in the said circumstances that it was observed by the learned lower appellate Court that the plaintiff should have examined Mohinder Singh in her evidence to disprove the execution of the Will. It was further held that the affidavit of Mohinder Singh in the facts and circumstances of the case cannot be said to be duly proved. It is well known that the propounder has to prove the Will and remove all the suspicious circumstances, however, when the plaintiff Bachan Kaur has set- up the affidavit of Mohinder Singh then obviously it is for her to have examined Mohinder Singh to prove the affidavit which had been deposed by R.S.A. No.4199 of 2006 [5] him in the Police inquiry. The learned trial Court has held that the thumb impressions of Mohinder Singh, the attesting witness and of testator Ujjagar Singh on the Will and also on the endorsement of the Sub-Registrar are of different ink. This aspect has also been considered by the learned lower appellate Court in para 45 of its judgment by observing that the Will cannot be said to be surrounded by suspicious circumstances merely because ink used for thumb mark impressions of Mohinder Singh and Ujjagar Singh was different. Keeping in view the other facts and circumstances of the case, the registration of the Will goes a long way to show its genuineness and the execution of the same by the testator. Besides, the testator had appeared before the Sub Registrar and the latter has appeared in evidence and stated that the testator appeared before him for the execution of Will. Another aspect that has been raised by the learned counsel for the appellant is with regard to the health condition of the testator. It has come in evidence that the testator Ujjagar Singh was suffering from Rheumatic Arthritis. The plaintiff Smt. Bachan Kaur has further taken the stand that he was suffering from Cancer. This is not the correct position. It has been deposed that Ujjagar Singh remained hospitalized from 24.8.1997 to 28.8.1997. During this period he had bed sores also. Reference has also been made to the deposition of Dr. Sanjay Gupta, who appeared on behalf of the plaintiff. He deposed that Ujjagar Singh remained in their hospital i.e. Govt. Medical College and Hospital, Sector 32, Chandigarh from 24.8.1997 to 28.8.1997. The learned lower appellate Court observed that it was for this reason that the Will that was executed on 22.8.1997 was got registered on 1.9.1997. In his cross-examination Dr. Sanjay Gupta deposed that a patient with bed sores could attend to daily chores with assistance of one or R.S.A. No.4199 of 2006 [6] two persons. In the circumstances, it was held that it cannot be said that Ujjagar Singh was unable to go to the office of Sub-Registrar for registration of Will. Besides, the doctor had not deposed to the effect that Ujjagar Singh was not in sound disposing mind. Another aspect that has been raised is that defendant Daljit Kaur while appearing in witness box and even in the written statement had stated that the testator never had any kind of illness. In my view, the tenor of the evidence which has been led by the defendant in Court would show that it was meant for the purpose that he was not suffering from illness so as to say that he was incapable of executing the Will. She also stated that Ujjagar Singh was not admitted in hospital. This, in my view, was only an overreach to ensure that the Will is duly proved which it is otherwise, from the evidence on record, duly proved. The Will has been held to be duly proved by the learned lower appellate Court. The plaintiff-appellant has formulated the following substantial questions of law in the present appeal:- “a) Whether the judgment of Appellate Court suffers from perversity of reasoning? b) Whether it is for the propounder of the will to prove its execution or it is for the objector to disprove it? c) Whether it is incumbent upon the propounder to remove the suspicious circumstances surrounding the execution of the will? d) Whether judgment of trial Court can be set aside by the appellate Court without setting aside the reasoning on the basis of reasoning given by the trial Court? R.S.A. No.4199 of 2006 [7] e) Whether the appellate Court has misread the evidence and has not referred to certain evidence?” A perusal of the above shows that none of the said questions of law as formulated arise for consideration in this appeal. In view of the foregoing discussion, there is no merit in this appeal and the same is accordingly dismissed. May 15, 2008. (S.S. Saron) Judge *hsp* NOTE: Whether to be referred to the Reporter or not:Yes/No