IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2964 of 2007 Date of Decision : May 02, 2008 Smt. Amarjit Kaur ....Appellant Versus Sukhwinder Kaur .....Respondent CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. Suresh Goyal, Advocate for the appellant. T.P.S. MANN, J. The appellant filed a suit for declaration and permanent injunction stating therein that her father Dalbara Singh was owner in possession of the house in dispute situated at Jandawal Road, Barnala. After his death, she and the respondent, who was wife of her late brother Surjit Singh were owners in possession of the house in dispute in equal shares. However, the respondent claimed herself to be exclusive owner in possession of the entire house on the basis of a Will dated 15.8.1987, said to have been executed by Dalbara Singh in her favour. The appellant requested the respondent to admit that the Will was illegal, null and void but the latter refused. Hence, the appellant filed the suit in question. In her written statement, the respondent claimed that she had been serving her father-in-law Dalbara Singh and being satisfied Regular Second Appeal No. 2964 of 2007 from the same, he had executed a Will dated 15.8.1987 bequeathing the suit property in her favour. Therefore, she was sole owner in possession of the house in dispute. She prayed for dismissal of the suit. The controversy in the entire suit related to the genuineness or otherwise of the Will dated 15.8.1987. The respondent claimed that her father-in-law Dalbara Singh executed the same in her favour as she had been serving him being her father-in-law and he was pleased with his services. On the other hand, the appellant claimed that no such Will had been executed by her father and, therefore, she was entitled to be declared owner of the house in dispute to the extent of half share. The Will in question was sought to be proved by the respondent by examining DW1 Gurcharan Singh Dhaliwal, Advocate and DW2 Pardip Kumar. While the former had signed the Will Ex. D1 as it was dictated by him on the asking of Dalbara Singh, the latter did it as a marginal witness. According to Gurcharan Singh Dhaliwal DW1, Dalbara Singh visited him in the Court complex on 15.8.1987 and availed his services for executing the Will. He dictated the Will Ex. D1, which was typed by the Deed Writer (Typist). Lateron, he signed the Will as well. According to him, the Will was also signed by two witnesses, namely, Pardip Kumar and Hakam Singh. One of them, namely, Pardip Kumar was examined as DW2, who unequivocally -2- Regular Second Appeal No. 2964 of 2007 deposed that Dalbara Singh executed the Will in his presence and thereafter appended his thumb-impression as well. Mere fact that it was an unregistered Will is no ground to hold that there was any suspicion in its genuineness. Out of the two marginal witnesses, the respondent examined Pardip Kumar DW2. He has fully supported the case of the respondent. Learned counsel for the appellant submitted that as the Will was claimed to have been executed on 15.8.1987, which was a holiday, therefore, it was not a genuine document. This argument loses its string when we examine the testimony of Gurcharan Singh Dhaliwal, Advocate DW1, wherein he stated that on the said date, which happened to be a holiday, he was present in the Court complex at Barnala when Dalbara Singh came to him for executing the Will. Position would have been different if the Will was a registered document. Objection could have been sustained that the registration was not possible on a holiday and, therefore, Will was not a genuine document. That is not the case. There is, thus, no suspicion in the due execution of the Will. Another argument submitted by learned counsel for the appellant is that at the time of execution of the Will, Surjit Singh son of Dalbara Singh testator was alive and, therefore, the testator, ought to have executed the Will in favour of his son and not the daughter-in- law. -3- Regular Second Appeal No. 2964 of 2007 A perusal of Will Ex.D1 shows that specific mention had been made therein by the testator that his son Surjit Singh was not under his control and had been quarreling with him and it was his daughter-in-law Sukhwinder Kaur (present respondent), who was looking after him. Learned counsel for the appellant submitted that the respondent was present at the time of execution of the Will by Dalbara Singh in her favour and therefore, the Will was rendered invalid. After going through the contents of the Will as well as the statement of Sukhwinder Kaur-respondent, who appeared as DW3, which documents were produced by learned counsel for the appellant for perusal, I find that Sukhwinder Kaur’s presence is no where noted in the Will Ex.D1. On the other hand, in her cross-examination, she clearly stated that she was not present at the time of the execution of the Will. Lastly, learned counsel for the appellant submitted that Hakam Singh, who was the other marginal witness of the alleged Will was not examined by the respondent but was later on produced by the appellant as PW5 in her rebuttal evidence. Said witness stated that he had signed on a blank paper on the asking of the respondent, which was later on converted into Will Ex.D1. Learned lower Courts have referred to the cross- examination of Hakam Singh PW5 where he stated that he singed on -4- Regular Second Appeal No. 2964 of 2007 the blank paper on the asking of the appellant but then corrected himself to say that he signed on the asking of the respondent as she was to apply for pension on behalf of her father-in-law. It is apparent that Hakam Singh himself was not sure as to at whose instance he had signed the blank paper. Sufficient indication is available on the file that he was not an independent witness but under the influence of the appellant and deposed on the direction of the appellant. Even otherwise, the law requires the production of only one marginal witness for proving the due execution of the document. Pardip Kumar had already been examined as DW2 by the respondent to prove the execution of Will Ex.D1. His testimony stood corroborated by that of Gurcharan Singh Dhaliwal, Advocate DW1. The findings of facts arrived at by learned lower Courts are based on proper appreciation of the evidence led by the parties. No case is made out for any interference in the concurrent findings arrived at by the learned lower Courts. None of the substantial questions of law, as claimed by the appellant arises for determination. The appeal is devoid of any merit and is, therefore, dismissed. ( T.P.S. MANN ) May 02, 2008 JUDGE satish Whether to be referred to the Reporters : YES / NO -5-