Regular Second Appeal No. 836 of 2007 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 836 of 2007 Date of Decision: 13.7.2011 Surjeet Kaur through her L.Rs …Appellant Versus Mandar Singh and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. M.K. Garg, Advocate for the appellants. Mr. B.S. Bhalla, Advocate for the respondents. Kanwaljit Singh Ahluwalia, J. (Oral) From the loins of Dalip Singh and the womb of Basant Kaur, Surjeet Kaur, plaintiff, Mandar Singh and Baldev Singh, defendants No.1 and 2, were born. Dalip Singh had executed an unregistered will dated 15.8.1989 in favour of his two sons to the exclusion of his daughter Surjeet Kaur, plaintiff. This is plaintiff's regular second appeal. Both the Courts below have placed implicit reliance upon the attesting witness DW.3 Sukhdev Kumar and DW.2 Rajwant Singh, Scribe. Both the Courts below held that mere fact that the will was registered lateron is not sufficient to discard the testimony of the attesting witness and the Scribe. Both the Courts below have discarded the testimony of PW.5 Sanjiv Kumar, Forensic Science, Finger Print and Handwriting Expert, Regular Second Appeal No. 836 of 2007 2 during his cross-examination, wherein he admitted that the disputed thumb impression was the R.T.I. and the standard thumb impression was L.T.I. Thus, the concurrent finding of fact returned by both the Courts below is assailed in the present appeal preferred by the plaintiff. Briefly stated, Surjeet Kaur instituted a suit for declaration to the effect that she is owner in possession of the land, details and description of which were given in the head note of the plaint. It was stated in the plaint that Dalip Singh, father of plaintiff and defendants No.1 and 2, was owner of the suit land. He died on 9.12.1989. The suit land was a Joint Hindu Family co-parcenary and ancestral property of the parties. Mandar Singh and Baldev Singh, brothers of the plaintiff, succeeded in getting mutation of inheritance of Dalip Singh and entered the land in their names vide mutation No. 21047 on the basis of some alleged forged and fabricated will dated 15.8.1989. It was further stated in the suit that Dalip Singh had never executed any will during his life time. Furthermore, Dalip Singh had no authority to make any will as the land in question is ancestral and Joint Hindu Family co-parcenary and ancestral property. On appearance, the defendants denied the averments made in the plaint. Plaintiff Surjeet Kaur appeared as PW.1. Parminder Singh, from the Revenue Office, Bagha Purana, brought and produced the summoned file of mutation No. 21047 along with the original will dated 15.8.1989. PW.2 Rajinder Kumar proved the sale deed dated 6.1.1983 from where standard thumb impressions of Dalip Singh were taken. PW.3 Nachhattar Singh stated that he was a Nambardar of Bagha Purana. He further stated that though he had no relation with Dalip Regular Second Appeal No. 836 of 2007 3 Singh yet he knew him personally. He proved the signatures of Dalip Singh on sale deed Ex.P2. PW.4 Rajinder Kumar, Document Writer, has also proved the sale deed Ex.P2, which was scribed by him. PW.5 Sanjiv Sharma, Forensic Science, Finger Print and Handwriting Expert, had compared the signatures of Dalip Singh, Testator, on the Will with sale deed Ex.P2. However, in his cross-examination, this witness admitted as under:- “...It is correct that in present case after detailed examination it is found that the disputed thumb impression is RTI and standard thumb impressions are LTIs, however, it was not known to me before taking the photographs of these thumb impressions...” In defence, the defendants examined Nand Singh, Assistant Office Kanungo, Tehsil Bagha Purana, as DW.1, who brought the summoned record. DW.2 Rajwant Singh, as earlier stated, was the Scribe of the Will and proved signatures of the attesting witness thereon. Baldev Singh, defendant No.2, appeared himself as DW.4. The trial Court gave the following findings:- “11. I have given my thoughtful consideration to the arguments of the learned counsel for the parties and have gone through the documents as well as evidence on the file. I find myself in respectful agreement with the contentions of learned counsel for the defendants. The defendants, in order to prove the due execution of the Will, has Regular Second Appeal No. 836 of 2007 4 examined DW.2 Rajwant Singh, Scribe of the Will and DW.3 Sukhdev Kumar, attesting witness of the Will. Both these witnesses have proved that the Will was scribed by Rajwant Singh at the instance of Dalip Singh and at the time of execution of the Will Dalip Singh was in his sound disposing mind and there was no pressure upon him. It has also been proved that the Will after its execution was read over and explained to Dalip Singh who put his thumb impressions over the same in the presence of the witnesses and the scribe. The endorsement of the Sub Registrar has also been proved Ex.D1/A. As per Section 63 of Succession Act the Will is required to be attested by at least 2 witnesses and it cannot be used as evidence unless at least one witness is required to prove its execution...” The trial Court also gave no credence to the testimony of PW.5 Sanjiv Sharma, Forensic Science, Finger Print and Handwriting Expert, as he admitted that the disputed thumb impression R.T.I. was compared with standard thumb impression L.T.I. He further admitted that L.T.I. and R.T.I. of the same person differ from each other. Taking the cross-examination of PW.5 Sanjiv Sharma, Forensic Science, Finger Print and Handwriting Expert, into consideration, the trial Court further held as under:- “...Therefore, it is clear that the opinion expressed by the Handwriting Expert that the thumb Regular Second Appeal No. 836 of 2007 5 impressions of Dalip Singh and the standard thumb impressions of Dalip Singh are of different person cannot be relied upon as the disputed thumb impressions are RTI and have not been compared with the right thumb impressions of Dalip Singh...” The trial Court further held that non registration of the Will would be of no consequence as the testimony of DW.2 Rajwant Singh and DW.3 Sukhdev Kumar aspire confidence. The findings of the trial Court have been affirmed by the lower Appellate Court. Learned counsel for the appellant has submitted that there was no reason for Dalip Singh to deny share of his estate to Surjeet Kaur, plaintiff. Thus, the Will in itself is a suspicious document. Both the Courts below have considered the contention of learned counsel for the appellant and rejected the same. The lower Appellate Court held that the plaintiff/appellant was a married daughter of Dalip Singh, who was living happily in her matrimonial house, therefore, Dalip Singh was very much satisfied from her and that is why he had executed a Will in favour of his two sons excluding plaintiff-Surjeet Kaur from his inheritance. This Court, in the regular second appeal, will not re-appreciate and do re-appraisal of the evidence. No substantial question of law arises for consideration of this Court. Hence, no interference is warranted in the present appeal and the same is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge July 13, 2011 “DK”