R.S.A.No. 1311 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1311 of 2008 (O&M) Date of decision: 13.11.2009 Krishan Kumar ......Appellant Versus Jagat Singh and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.G.S.Nagra, Advocate, for the appellant. Mr.Harsh Bungar, Advocate, for the respondents. **** SABINA, J. Plaintiff Krishan Kumar filed a suit for declaration, permanent injunction and recovery of possession, which was decreed by the Civil Judge (Sr.Divn.), Jalandhar vide judgment and decree dated 10.4.2006. In appeal, the said judgment and decree were set aside by the Additional District Judge, Jalandhar vide judgment and decree dated 28.11.2007 and the suit of the plaintiff was dismissed. Hence, the present appeal by the plaintiff. R.S.A.No. 1311 of 2008 (O&M) 2 Brief facts of the case, as noticed by the lower appellate Court in para Nos. 1 and 2 of its judgment, are as under:- “ Instant suit was brought by Krishan Kumar pleading that Banta Ram father of plaintiff and defendants No.1 to 7 was owner in possession of suit property, purchased by him from department of Rehabilitation. However, substantial amounts towards sale consideration was paid by the plaintiff towards sale consideration and many installments were also paid by him. A will is said to have been executed by Banta Ram during his life time while being in sound disposing mind on 20.5.1976 in favour of the plaintiff. After death of Banta Ram, plaintiff has become owner in possession of the suit property and has remained in continuous and uninterrupted possession thereof. He was getting it cultivated from his various tenants from time to time and at the time of filing of the suit Harbans Singh was cultivating it as a tenant of the plaintiff. During life time of Banta Singh, plaintiff had been assisting him in cultivation of land and had spent a lot of money in the improvement of land. He also got installed a tubewell in the suit property. Both of Banta Ram and his wife used to live with plaintiff in vilalge Garhi Bakshi while defendants No.1 to 4 have been residing separately from Banta Ram ever since their respective R.S.A.No. 1311 of 2008 (O&M) 3 marriages while daughters of Banta Ram were happily married and are well settled in their matrimonial houses. Being pleased and satisfied with the services rendered by plaintiff Banta Ram voluntarily executed Will in favour of plaintiff on 20.5.1976. Plaintiff has got the Will registered as well in the year 1992. However, revenue authorities have wrongly and illegally mutated estate of Banta Ram on the basis of natural succession, which orders do not bound him. Under the garb of illegal orders passed by Collector, defendants have started proclaiming to be owners of suit property and have threatened to interfere in his possession and to dispossess him therefrom. They were also threatening to alienate the suit property and in the months of May and June, 2000, defendants have taken forcible possession of suit property in his absence, violating orders dated 17.3.1998. By way of instant suit Krishan Kumar had asked for being declared exclusive owner in possession of the suit property, described and detailed in the head note of plaint and had asked for delivery of possession thereof to him and for perpetually restraining defendants from dispossessing him from the suit property and alienating any part thereof. 2. Defendats No.2 and 3 in their jointly filed written statement have raised preliminary objections R.S.A.No. 1311 of 2008 (O&M) 4 against maintainability of suit and have termed the suit under value for purpose of Court fee and jurisdiction and locus standi of plaintiff and alleged accrual of cause of action for filing this suit have also been questioned. On merits, it is admitted that Banta Ram was owner in possession of suit property, but it is denied that Banta Ram had bequeathed it upon plaintiff. At the time of death of Banta Ram, plaintiff was just but a student and a kid, who could not have spent any amount towards sale price of suit property or towards its improvement, rather defendant No.2 have spent enough money to enable Banta Ram to purchase suit property and to maintain it. On these averments dismissal of the suit has been asked.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether Sh.Banta Singh executed a Will dated 30.5.1976 in favour of the plaintiff? OPP 1-A Whether the defendant has taken the possession during the pendency of the suit in the month of May/June, 2000, if so its effect? OPP 2 Whether in the alternative, plaintiff is entitled for possession of the property? OPP 3. Whether the suit is not maintainable in the R.S.A.No. 1311 of 2008 (O&M) 5 present form? OPD 4. Whether the plaintiff is entitled to the declaration as prayed for? OPP 5. Whether the plaintiff is entitled to the injunction as prayed for? OPP 6. Relief. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Plaintiff Krishan Kumar had filed a suit for declaration that he was exclusive owner in possession of the suit land on the basis of Will dated 20.5.1976 executed by his father Banta Ram in his favour. 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 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 R.S.A.No. 1311 of 2008 (O&M) 6 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, the Will Ex.P-1 was allegedly executed by executant Banta Ram on 20.5.1976, which reads as under:- “I, Banta Ram resident of village Garhi Baksha, Tehsil and District Jullundur hereby revoke all previous Wills and codecils made by me and by this my last Will bequeath and devise my Agricultural land measuring about 35 kanals situated in vilalge Kandhala Guru, Tehsil and District Jullundur to my son Krishan Kumar absolutely and appoint sole executor of this my WILL. R.S.A.No. 1311 of 2008 (O&M) 7 I am sound of mind at this time of executing this WILL. In witness the proof I have signed this Will hereunder on 20th day of May, 1976.” Banta Ram died on 11.7.1976, the Will was thereafter, got registered on 23.4.1992. A perusal of the Will reveals that the executant has not given any reason as to why the other heirs were being disinherited all the estate of the executant. There is no dispute that Will is a deviation from natural succession and the executant can execute the Will in favour of one or more legal heirs but in normal circumstances, it is expected for the executant to atleast give some reasons for disinheriting other legal heirs, while executing the Will in favour one or more legal heirs. The executant died in July, 1976, whereas, the Will was executed in May, 1976. The attesting witness to the Will Gurbant Singh was examined as PW-1. The cross-examination of the said witness is very relevant. In his cross-examination PW-1 Gurbant Singh deposed that the Will was executed in the house of Kartar Chand. The Will was got typed from old Courts, Jalandhar City about a week prior to its execution. Hari Singh signed the Will first of all and thereafter, he (witness) had signed the Will. Thereafter Banta Ram thumb marked the Will. Thus, from the cross- examination of PW-1, it is evident that the attesting witnesses had attested the Will before the executant had thumb marked the same. R.S.A.No. 1311 of 2008 (O&M) 8 PW-1, thus, cannot be said to be an attesting witness to the Will in the real sense. The propounder of the Will remained silent for fifteen years and did not produce the Will before any authority or anybody else. This also renders the Will a suspicious document in the facts and circumstances of the present case. A perusal of the Will further reveals that it has been typed that the executant had signed the Will, whereas, it has been thumb marked by the executant. In these circumstances, the learned Additional District Judge had rightly held that the Will in question was not a genuine document. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 13, 2009 anita