RSA No.687 of 2011 (O & M) - 1 – IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.687 of 2011 (O & M) Date of Decision: 08.02.2011 Harminder Kaur and another ……Appellants Versus Joginder Singh and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. B. S. Sra, Advocate for the appellant. L.N. MITTAL, J (ORAL) CM No.1867-C of 2011 Allowed as prayed for. CM No.1868-C of 2011 For reasons mentioned in the application which is accompanied by affidavit, delay of 71 days in filing the appeal is condoned. Main Appeal. Defendants No.1 and 14-Harminder Kaur and Gurnam Singh, have filed the instant second appeal. Respondent Nos.1 to 3-plaintiffs, who are sons of Sadhu Singh, filed suit seeking declaration that they are joint owners to the extent of half share in house No.B-1-455, plot No.58/1 and partly built plot No.59/1. The plaintiffs alleged that house No.B-1-455 was allotted to Sadhu Singh in lieu of ancestral property left in Pakistan. The other two properties were owned by plaintiffs’ mother Narian RSA No.687 of 2011 (O & M) - 2 – Kaur. Sadhu Singh and Narian Kaur had five sons and a daughter. Plaintiffs being three sons of the deceased Sadhu Singh and Narian Kaur, therefore, have half share in the suit properties. Defendant Nos.1 and 3 to 5 set up Will dated 23.11.1974 executed by Sadhu Singh in favour of Budh Singh-defendant No.5 son of pre-deceased son Dalbir Singh regarding entire property of Sadhu Singh. Plaint allegations were broadly controverted. Registered Will dated 01.02.1966 in favour of Dalbir Singh was also pleaded, but Dalbir Singh pre-deceased Sadhu Singh. Registered gift deed dated 12.07.1966 allegedly executed by Sadhu Singh was also set up in favour of Dalbir Singh. Narian Kaur, who was owner of property No.59/1, executed Will dated 02.07.1963 in favour of her husband Sadhu Singh. Defendant No.14 claimed to be bonafide purchaser of the property measuring 4 ½ marlas out of plot No.59/1 from defendant No.1 vide sale deed dated 03.03.1988. Defendant No.1 also set up gift deed dated 20.07.1966 executed by Sadhu Singh in favour of his son Kulwant Singh regarding property No.B-1- 455. It was alleged that Kulwant Singh sold the same to defendant No.1 vide sale deed dated 07.02.1977. The plaint allegations were broadly controverted. Learned Additional Civil Judge (Senior Division), Amritsar vide judgment and decree dated 17.102008 partly decreed the plaintiffs’ suit declaring them to be joint owners to the extent of half share in house No.B-1-455 and plot No.59/1 and preliminary decree for partition thereof was passed. Suit regarding property No.58/1 was dismissed. First appeal preferred by defendant Nos.1 and 3 to 5 has been dismissed by learned Additional District Judge, (Ad hoc), RSA No.687 of 2011 (O & M) - 3 – Fast Track Court, Amritsar vide judgment and decree dated 07.08.2010. Feeling aggrieved, defendant Nos.1 and 14 have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Case of the appellants is based on alleged Will dated 02.07.1963 executed by Narian Kaur in favour of her husband Sadhu Singh. To prove the said Will, defendants have examined Sohan Singh DW-12 one of the attesting witnesses of the said Will. However, testimony of this witness does not satisfy the requirements of Section 63 (c) of the Indian Succession Act, 1925. In examination- in-chief of course, the witness stated that the Will was executed in presence of all the witnesses including him and the testatrix thumb marked the Will in their presence and the witnesses attested the Will in her presence. However, his testimony was impeached in cross- examination, when he stated that the Will was first signed by Dara Singh witness, then by Natha Singh witness and thereafter thumb marked by Narian Kaur testatrix. Sohan Singh further stated that Narian Kaur had already thumb marked the Will when he (Sohan Singh) reached there. Consequently, the witness also did not know how may thumb impressions were affixed by Narian Kaur on the Will. It is thus apparent that in the presence of Sohan Singh, the Will was never thumb marked by Narian Kaur testatrix nor attested by the other witnesses Dara Singh and Natha Singh. Consequently, testimony of Sohan Singh does not satisfy the requirements of valid execution of the Will as provided by Section 63 (c) of the Indian Succession Act, 1925. RSA No.687 of 2011 (O & M) - 4 – In addition to the aforesaid, plaintiffs examined Sukhpreet Kaur finger print expert as PW-4. She has deposed that alleged thumb impressions of Narian Kaur on the impugned Will are not her thumb impressions when matched with her standard thumb impressions. Science of finger print comparison is perfect science. No expert witness to the contrary has been examined by the defendants. It is also thus established that the impugned Will does not bear even the thumb impressions of testatrix Narian Kaur. Consequently, it is manifest that no such Will was executed by her. Perhaps Sohan Singh DW-12 also knew that the Will does not bear thumb impressions of Narian Kaur and, therefore, to save his own skin from being prosecuted from perjury, Sohan Singh in his cross- examination deposed that Narian Kaur had already thumb marked the Will before he reached there. Will dated 23.11.1974 allegedly executed by Sadhu Singh in favour of Budh Singh-defendant No.5 has also been rightly discarded by the Courts below. There are so many suspicious circumstances about the said Will which make it amply clear that the said Will has been fabricated. Both the Courts below have discussed this aspect of the Will in great details leaving no room for doubt that the aforesaid Will is not genuine. This Will was not set up in the original written statement. On the other hand, it is mentioned in the Will that many shops existed in property Nos.58/1 and 59/1 whereas defendant No.1 stated in cross-examination that shops on Plot No.59/1 were constructed in the year 1988. It is not explained as to how existence of the said shops was mentioned in Will dated 23.11.1974. It is also mentioned in the Will that Narian Kaur died in the year 1953 whereas in fact she died in the year 1963. Age of Sadhu Singh is also not correctly mentioned in this Will. Names of daughters of RSA No.687 of 2011 (O & M) - 5 – Sadhu Singh are also not mentioned in the Will. Reference to gift deed dated 20.07.1966 has also not been made in the said Will. Budh Singh defendant No.5 was aged three years only at the time of the alleged Will, but it has been mentioned that Budh Singh had been serving the testator Sadhu Singh. It is not explained as to how a child aged three years could render services to his grand father. Testimony of Gurmej Singh DW-15 is also not sufficient to prove the execution of this Will and his veracity has been impeached in cross-examination. Both the Courts below have arrived at concurrent finding for discarding this Will. The said finding is based on proper appreciation of evidence and is supported by weighty reasons. The said finding does not warrant interference in second appeal. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by both the Courts below is not shown to be perverse or illegal so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 08.02.2011 A.kaundal