Regular Second Appeal No. 4700 of 2009 1 In the High Court of Punjab and Haryana, at Chandigarh Regular Second Appeal No. 4700 of 2009 Date of Decision: 7.9.2011 Darshani Devi and Others ... Appellants Versus Dharam Pal and Another ... Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. S.D. Sharma, Senior Advocate with Ms. Bindu Goel, Advocate for the appellants. Mr. Harsh Aggarwal, Advocate for the respondents. Kanwaljit Singh Ahluwalia, J. (Oral) Mr. S.D. Sharma, Senior Advocate, assisted by Ms. Bindu Goel, Advocate, appearing for the appellants, has submitted that the suit was filed by the plaintiffs/appellants seeking declaration to the effect that the Will dated 24.4.1997, executed by Smt. Manbhari widow of Chuhra Ram in favour of defendant Dharampal, is liable to be set aside being nonest, invalid and not binding upon the plaintiffs/appellants. He has further submitted that the trial Court held that the Will is surrounded by suspicious circumstances and had decreed the suit and furthermore had restrained the defendants from interfering in the peaceful possession of the appellants/plaintiffs. He has further submitted that on Regular Second Appeal No. 4700 of 2009 2 the appeal filed by defendant No.1, the lower Appellate Court has reversed the finding, regarding the Will, returned by the trial Court and upheld the Will to be valid. Learned senior counsel has further submitted that however, the lower Appellate Court had not said a single word regarding possession and grant of permanent injunction in favour of the appellants/plaintiffs. This factual position is not disputed by learned counsel for the respondents, however, he has submitted that respondent/defendant No.2 is in possession of the suit property. The lower Appellate Court, while determining the validity of the Will, has observed as under:- “17...On the other hand Mange Ram, Registration Clerk, appeared as DW.1 and deposed that he has seen original Will dated 24.4.1997 and the same was executed by Manbhari in favour of her son Dharam Pal and the same is registered. Shiv Dayal, numberdar (DW2) has filed his affidavit to the effect that will dated 24.4.1997 Ex.D1 was executed by Manbhari in favour of Dharam Pal and the same was scribed by Sanjiv Kumar and after scribing, the contents were read over to Manbhari had appended her thumb impression on the same after understanding the contents thereof as correct. He deposed that the Will was executed by Manbhari out of her free will and she was of sound mind. Sanjiv Kumar, scribe of the Will, appeared as DW.3 and he deposed that will was scribed by him at the instance Regular Second Appeal No. 4700 of 2009 3 of Manbhari and after scribing, the contents were read over to her and she has appended her thumb impression on the same after understanding the contents of the Will and Will was signed by and Shiv Dayal, Nmberdar and Sarupa and appended his thumb impression on the Will as an attesting witness. Defendant/appellant Dharam Pal has filed his affidavit to the effect that Will in question was executed by Manbhari in his favour and she used to live with him for the last 24-25 years prior to her death and he used to look after her and his father has expired in 1996. Thus, defendant/appellant has examined scribe namely Sanjiv Kumar (DW3) and one of the attesting witness namely Shiv Kumar, Numberdar (DW2) and a Clerk from the office of Sub Registrar to prove the Will. Another attesting witness namely Sarupra has been examined by plaintiff in their rebuttal evidence as PW5 and he has admitted that Manbhari was present in Tehsil Barara on 24.4.1997. Though in his affidavit he has stated that he was requested by Dharam Pal to sign loan papers as witness but in his cross-examination he has admitted that Manbhari was sitting at a place where sale deeds are registered. He has also admitted that Dharam Pal and Shiv Dayal, numberdar, were also present there. Scribe namely Regular Second Appeal No. 4700 of 2009 4 Sanjiv Kumar and attesting witness Shiv Dayal, numberdar, have filed their affidavits to the effect that Will in question as executed by Manbhari in favour of Dharam Pal. Sarupa, one of the attesting witness, has stated that Manbhari did not execute Will in his presence nor has singed any Will executed by Manbhari in favour of Dharam Pal. Presence of Manbhari in Tehsil is admitted by him. Thumb impression of Sarupa on the Will is also not in dispute though he has stated that the same were obtained under the pretext of loan papers. He has admitted that Manbhari was sitting at a place where sale deeds are registered and Dharam Pal and Shiv Dayal, numberdar were also present there. In Lila Dhar Vs. Smt. Badho & another 1994 (1) Civil Court Cases 214 (P&H) (Supra) it has been held by our Hon'ble High Court that if attesting witness or some of them turn hostile or unreliable, Court can still declare a Will valid if from the other evidence on record and the circumstances taken as a whole, it is in a position to hold that the Will was duly executed and attested. In Gurdev Singh & another Vs. Smt. Shanti and Others 1989 Civil Court Cases 40 (P&H) (Supra) one attesting witnesses deposed that he signed the will believing it to be a power of attorney. Other attesting witness not examined and Regular Second Appeal No. 4700 of 2009 5 given up as having colluded with opposite party, Scribe and Sub Registrar proved the Will. It was held by our own Hon'ble High Court that will was duly executed. In Ramabai Padamakar Patil V. Rukminibai Vishnu Vekhande RLR 2003(4) 92 (SC) (Supra). Hon'ble Supreme Court has held that requirement of law would be fully satisfied if only one of the attesting witnesses was examined to prove the Will...” Defendant No.1 Dharampal had examined Scribe of the Will namely Sanjiv Kumar as DW.3 and a Clerk from the office of the Sub Registrar to prove the Will. After considering the evidence, the lower Appellate Court held that from the evidence available on the file, the Will dated 24.4.1997 was indeed found to be executed by Smt. Manbhari in favour of Dharampal, appellant/defendant No.1. Learned senior counsel for the appellants, during the course of arguments, has not been able to advance any convincing argument for setting aside the well reasoned finding given by the lower Appellate Court regarding the validity of the Will. Learned counsel, referring to the evidence of the witnesses, has submitted that the finding returned by the lower Appellate Court cannot be sustained in the eyes of law. The lower Appellate Court was the Court of fact and law. This Court will be hesitant to re-appreciate and do re-appraisal of the evidence, especially when the view formulated by the lower Appellate Court is one which is possible on the facts of the case. Hence, the finding returned by the lower Appellate Court regarding the validity of the Will is upheld. Regular Second Appeal No. 4700 of 2009 6 The trial Court had formulated the following as issue No.2:- “2. Whether the plaintiffs and defendant No.1 along with LRs of defendant No.2 are owner in possession over the disputed property? OPD” There was no discussion and no specific finding has been returned qua issue No.2 by the lower Appellate Court. Thus, in view of the broad consensus arrived at between the parties, the matter is remitted back to the lower Appellate Court to determine possession of the parties. Parties through their counsel are directed to appear before the trial Court on 13.10.2011. Needles to say that in case it is held by the said Court that the appellants/plaintiffs are in possession of the suit property, defendant No.1, to whom the property has been bequeathed as per the Will in question, should seek possession thereof in accordance with the provisions of law. (Kanwaljit Singh Ahluwalia) Judge September 7, 2011 “DK”