R.S.A.NO. 2075 OF 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.NO. 2075 OF 2007 Date of decision:24th October, 2009 Sadhu Singh ......Appellant Versus Dalip Singh and others ......Respondents Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Raj Kakkar, Advocate for the appellant. Mr. C.M.Munjal, Advocate for the respondents. Rajive Bhalla, J(Oral) The appellant challenges judgments and decrees dated 8.03.1979 and 21.02.2007, passed by the Sub Judge, Ist Class, Zira and the Aditional District Judge, Ferozepur, dismissing the suit and the appeal, respectively. Smt. Lachhmi, since deceased filed a suit for declaration that she is owner in possession of the suit property on the basis of a will dated 22.11.1975, executed by Teja Singh deceased, bequeathing the suit land to her. Smt. Lachhmi alleged that the testator Teja Singh was a close relative. As he did not have any real brother or sister, he requested her to reside in her house. She accepted his request and along with her husband and children began residing with Teja Singh. R.S.A.NO. 2075 OF 2007 -2- Teja Singh executed the will in her favour, in acknowledgment of her services but passed away soon thereafter, issueless and unmarried. In response to the averments in the plaint, the respondents filed a written statement alleging that the will is a forged and a fabricated document as it is surrounded by a large number of suspicious circumstances. The respondents denied that Smt. Lachhmi resided in the house of Teja Singh and in turn pleaded that Teja Singh had made an oral gift in their favour but if not established, they are owners in possession having perfected their title by adverse possession. After considering the pleadings, the evidence adduced and the arguments addressed, the Sub Judge First Class Zira, vide judgment and decree dated 8.03.1979, dismissed the suit by holding that Smt. Lachhmi had failed to prove the execution of the will or dispel suspicious circumstances surrounded its execution. Aggrieved by the aforementioned judgment and decree, Smt. Lachhmi filed an appeal. Vide judgment and decree dated 21.02.2007, the Aditional District Judge, Ferozepur, dismissed the appeal and affirmed the findings recorded by the trial court. Counsel for the appellant submits that the will dated 22.11.1975, has been proved by examining Ajit Singh and Sohan Singh, the attesting witnesses and Shangara Singh the scribe. The attesting witnesses and the scribe have deposed that Teja Singh, executed the will in the presence of the attesting witnesses who, thereafter, appended their thumb impressions in the presence of Teja Singh. The alleged suspicious circumstances referred to by the courts below are neither suspicious nor sufficient to discard a duly executed will. A reference that the thumb impressions are in different ink, is entirely irrelevant. The mere fact that there are minor contradictions R.S.A.NO. 2075 OF 2007 -3- in the depositions of the attesting witnesses and the scribe, as to their arrival at Teja Singh's house are irrelevant. It is further argued that the mere fact that the testator passed away two days after the execution of the will, cannot by itself be sufficient to hold that the will is forged and fabricated. It is argued that in view of the errors committed by the courts below, the following substantial questions of law arise for consideration:- 1. Whether execution of the will by executant 2 days prior to death can be a suspicious circumstance in the execution of the will as death is always uncertain? 2. Whether the person who is claiming the relief on the basis of the oral gift from the original owner can claim ownership over the land by way of adverse possession? 3. Whether the person who claims to have been owner of the property on the basis of the adverse possession can claim the plea of oral gift by the owner? 4. Whether the beneficiary of the will is require to prove sound disposition of the mind of the executant of the will at the time of the execution of the will by way of medical evidence? 5. Whether in appeal under Section 96 CPC, the first appellate court should give findings on all the issues or whether the first appellate court can left certain issues undecided? Counsel for the respondents, on the other hand, submits that the suspicious circumstances, pointed out by the courts below, R.S.A.NO. 2075 OF 2007 -4- cast a doubt upon the execution of the will. As the appellant has failed to discharge the onus of proving the execution of the will and dispelling suspicious circumstances, the courts below have rightly recorded a concurrent opinion that the will has not been proved. It is further argued that a bare perusal of the will, establishes that words “this is my last will” were added later, the thumb impressions were obtained on a blank paper or after the testator had died. It is for this reason that the attesting witnesses are discrepant in their depositions with respect to material particulars. I have heard counsel for the parties, perused the impugned judgments and decrees and express my inability to hold that the findings of fact recorded by the courts below suffer from any error, much less such an error as would raise a substantial question of law. Teja Singh deceased died unmarried and issue less. The dispute in the present case relates to his will dated 22.11.1975, whereby, he bequeathed his entire estate to Smt. Lachhmi. The will is attested by Ajit Singh and Sohan Singh and scribed by Shangara Singh. Admittedly, Teja Singh passed away on 24.11.1975, two days after the execution of the will. The will is unregistered and has been scribed by Shangara Singh who is not a regular deed writer. The thumb impressions of the testator and the witnesses are in different ink. The words “this is my last will” appear to have been interpolated later between the thumb impression and the body of the will. The attesting witnesses and the scribe made contradictory statements with respect to their arrival at the house of Teja Singh and as to who called them for the execution of the will and other material facts. It would also require mention, that Ajit Singh is a mere passer by, whereas Shangara Singh claims to be ploughing the land of Ajit Singh when he was called to write the will. These witnesses have admitted that the R.S.A.NO. 2075 OF 2007 -5- family members of Smt. Lachhmi were present during the alleged execution of the will. It is true that though death comes unnatural and the fact that the testator died two days after the execution of the will may not by itself be sufficient to discard a will but when considered with the circumstances enumerated above assumes greater significance. The questions of law, as referred to hereinabove, are mere issues in fact and do not raise any substantial question of law. The fact that the respondents have pleaded an oral gift or adverse possession are irrelevant in so far as it concerns the proof of the will as it was for the appellant to prove the execution of the will. Even otherwise, the courts below have rejected these pleas. It is true that the propounder of a will may not be required in every case, to produce medical evidence to prove that the testator was of sound disposing mind, but he must prove, by satisfactory evidence that at the time of the execution of the will the testator was of sound disposing mind. Counsel for the appellant has failed to point out any error or perversity in the process of reasoning or in the conclusions recorded by the courts below, as would require interference. In view of what has been stated hereinabove, as no substantial question of law arises for consideration, the appeal is dismissed with no order as to costs. [RAJIVE BHALLA] JUDGE 24th October, 2009 Shivani Kaushik