IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2390 of 1989 Date of Decision : July 08, 2009 Bhagwan Dass and others ....Appellants Versus Kishan Chand @ Siri Chand .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. R.S. Mittal, Senior Advocate assisted by Mr. Atul Gaur, Advocate for the appellants. Mr. S.R. Hooda, Advocate for the respondent. T.P.S. MANN, J. Suit filed by the plaintiff/respondent for possession of portion of the house and 1/3rd portion of the covered court-yard was decreed by Sub Judge II Class, Sonepat on 1.3.1986. Aggrieved of the same, the defendants filed the first appeal which was dismissed by Additional District Judge, Sonepat on 25.5.1989. They are now before this Court by way of second appeal. According to the plaintiff, the house in question was owned and possessed by Rama Nand, father of the plaintiff and defendant No.1. In family partition, the father had given exclusive possession of different portions of the house to all his five sons. He had also executed Regular Second Appeal No.2390 of 1989 -2- a registered Will dated 20.6.1974 bequeathing his entire property in favour of his sons. He died on 9.10.1981. However, defendant No.1, in collusion with defendants No.2 and 3, who were his sons, took illegal and forcible possession of the portion of the house belonging to the plaintiff. The plaintiff even served a registered notice upon the defendants to deliver the vacant possession of his portion of the house to him but it was to no effect. Hence, the suit. While contesting the suit, the defendants pleaded that father of the plaintiff and defendant No.1 had executed a Will dated 7.11.1977 bequeathing the house in question in favour of Bhagwan Dass and Anand Sarup defendants, besides Bhagwant Sarup, Chander and Narain Dass. The plaintiff was excluded from the Will as he had already constructed a house at Sonepat at his father's expenses. Therefore, the plaintiff had no right, title or interest in the portion of the house, as claimed by him. The trial Court had framed the following issues :- 1. Whether the plaintiff is the owner of the suit property as alleged ? OPP. 2. Whether any valid Will dated 20.6.1974 was executed by Rama Nand in favour of plaintiff as alleged ? OPP. 3. Whether the suit is not maintainable in the present form. ? OPD. Regular Second Appeal No.2390 of 1989 -3- 4. Whether the plaintiff has no locus standi to file the present suit ? OPD. 5. Whether the suit property is not an ancestral property ? OPD. 6. Whether any valid Will dated 7.11.1977 was executed by Rama Nand in favour of defendants, of the suit property, if so to what effect ? OPD. 7. If issue No.6 is not proved, whether the defendants have become the owners of the suit property by lapse of time as alleged ? OPD. 8. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction ? OPD. 9. Relief. Both the Courts below held the plaintiff to be the owner of the house in question. The Will dated 20.6.1974 was found to be validly executed while Will dated 7.11.1977 was not believed as its execution was surrounded by suspicious circumstances. Accordingly, the suit stood decreed. Learned counsel for the defendants/appellants submitted that the Court below wrongly held that the Will dated 7.11.1977 was not a validly executed document as the same was surrounded by suspicious circumstances. The presence of Anand Sarup defendant at the time of execution of the said Will by itself was not a suspicious circumstance as no active part was attributed to him. Both the Courts below misread the Regular Second Appeal No.2390 of 1989 -4- pleadings and applied wrong tests while appreciating the evidence, and, therefore, the findings rendered by them were vitiated. On the other hand, learned counsel for the plaintiff/ respondent argued that Will dated 20.6.1974 was validly executed whereas execution of Will dated 7.11.1977 was surrounded by suspicious circumstances. Learned counsel for the defendants/appellants submitted that the following substantial questions of law are involved in the appeal:- i) Whether the Will (Ex.D1) is valid and is not surrounded by any suspicious circumstances? ii) What circumstances can be termed to be suspicious and whether any of those circumstances exists in the present case? iii) Whether the presence or otherwise of Anand Sarup at the time of execution of Will (Ex.D1) by itself is a suspicious circumstance surrounding the Will because no active part is attributed to him? iv) Whether or not the learned lower appellate Court has mis-read the pleadings of the parties as well as the evidence on the record and, therefore, the findings on issues No. 1 and 2 are perverse? Regular Second Appeal No.2390 of 1989 -5- v) Whether wrong tests have been applied by the learned lower appellate Court in the matter of appreciation of evidence rendering its findings to be vitiated. The testimonies of PW6 Om Parkash Deed Writer, PW8 Harbans, attesting witness of the Will Ex.P2 executed by Rama Nand on 20.6.1974, are sufficient and worth relying upon to hold that the execution of the said Will stood validly proved. Even defendant Anand Sarup while appearing as DW1 admitted in his cross-examination that in 1974 his grandfather Rama Nand had executed a Will. None of the defendants had categorically denied the execution of the same in their joint written statement while replying to para 2 of the plaint. In respect of Will dated 7.11.1977 Ex.D1, it may be noticed that as Rama Nand had already executed registered Will Ex.P2 on 20.6.1974 in which he had shown partition of his ancestral property amongst his five sons, there was no necessity for him to execute Will afresh on 7.11.1977 about the house in question and, that too, by excluding the plaintiff. There was no mention made by Rama Nand of the Will Ex.P2 while executing Will Ex.D1 on 7.11.1977. DW2 Om Parkash Deed Writer did not depose about having read over and explained the contents of Will Ex.D1 to its testator Rama Nand or Rama Nand having put his thumb impression thereon after understanding and admitting its contents. According to DW4 Chander Bhan, one of the Regular Second Appeal No.2390 of 1989 -6- attesting witnesses of Will Ex.D1, it was scribed by Rup Chand, Petition Writer, who had since died. He was asked by Rup Chand to put his signatures on the Will and he had done so. He did not know as to what was written in Will Ex.D1. The testimony of DW4 Chander Bhan ran contrary to the case of the defendants when they had claimed that Will Ex.D1 was scribed by Om Parkash. Similarly, no reliance can be placed upon the testimony of DW3 Man Singh, the second attesting witness of Will Ex.D1, when he deposed that it was read over and explained to the testator as the scribe had not said so. According to him, the Will Ex.D1 was signed by the testator but a perusal of the Will shows that it bore the thumb impression of testator. DW1 Anand Sarup, one of the defendants, had denied that he was present at the time of execution of Will Ex.D1. However, DW4 Chander Bhan had testified that Anand Sarup was present. In view of the above, it is held that the Will Ex.D1 is invalid as its execution was surrounded by suspicious circumstances. What amounts to a suspicious circumstance depends upon the facts of a particular case. In general, those circumstances which go to dispel the impression in the mind of the Court about the genuineness of a document, can be termed as suspicious. The presence of the beneficiary of a Will at the time of its execution may not be considered as a Regular Second Appeal No.2390 of 1989 -7- suspicious circumstance especially when he had not taken active part in the execution thereof but when he denied his presence at the time of execution of the Will, the Court can also term it as a suspicious circumstance. Both the Courts below appreciated the entire evidence in its proper perspective before decreeing the suit. There was no misreading of the pleadings and the evidence. Resultantly, I find that none of the substantial questions of law arises for determination. Therefore, no case is made out for upsetting the findings arrived at by the Courts below. The appeal is, accordingly, dismissed but with no order as to costs. ( T.P.S. MANN ) July 08, 2009 JUDGE ajay-1