R.S.A.No. 4178 of 2008(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4178 of 2008(O&M) Date of decision: 28.4.2011 Hardial Singh ......Appellant Versus Sukhdev Kaur and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.A.S.Jattana, Advocate, for the appellant. None for respondents **** SABINA, J. Plaintiff had filed a suit for declaration and permanent injunction. The case of the plaintiff, in brief, was that the land measuring 23 bighas 9 biswas and 12 biswansi was owned by Nahar Singh and Inder Singh in equal shares. After their death share of Inder Singh stood transferred in favour of the plaintiff. Mutation was sanctioned in favour of the plaintiff qua half share out of the suit property. Nahar Singh sold 5 bigha 12 biswas and 4 biswansi of land vide R.S.A.No. 4178 of 2008(O&M) 2 sale deed dated 23.8.1983 to Harminder Singh and Bikram Singh. The plaintiff sold the land measuring 5 bigha 17 biswas and 8 biswansi vide sale deed dated 22.5.1990 to defendant No.2. Defendant No.1 got mutation sanctioned in her favour on 14.5.1992 on the basis of Will dated 5.2.1992, alleged to have been executed by Nahar Singh in her favour. The said Will was challenged by the plaintiff on the ground that it was a forged and fictitious document. Nahar Singh had never executed any Will in favour of defendant No.1. Bhagwan Kaur, mother of the plaintiff, had died on 7.7.1987 and Nahar Singh had died in February 1992. The plaintiff being the only legal heir of Nahar Singh had inherited his estate. Defendant No.1, in her written statement, admitted the fact that Nahar Singh had half share out of the land measuring 23 bighas, 9 biswas and 12 biswansi. Nahar Singh had not sold the land to Harminder Singh and Bikram Singh. Defendant No.1 was the real niece of Nahar Singh and had looked after him. Nahar Singh had executed a registered Will in favour of defendant No.1 and on the basis of the same mutation of inheritance qua estate of Nahar Singh had been sanctioned in her favour. Defendant No.2, in his written statement, averred that Nahar Singh and Inder Singh had leased the entire suit land to him. Defendant No.2 had purchased the land from plaintiff measuring 5 bigha 17 biswas and 8 biswansi vide sale deed dated 22.5.1990. Nahar Singh had not executed the Will in favour of defendant No.1. Nahar Singh had executed the Will in favour of defendant No.2, Harminder Singh and Bikram Singh on 13.3.1986. Defendants No. 4 and 5, in their written statement, R.S.A.No. 4178 of 2008(O&M) 3 averred that Nahar Singh had sold 5 bigha 12 biswas and 4 biswansi of land to them vide sale deed dated 23.5.1983. Defendant No.3 did not file any written statement although he appeared in person after service of notice. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether Nahar Singh send the land measuring 5 bigha 12 biswas and 4 biswansi to Harminder Singh and Bikram Singh vide sale deed dated 23.8.1983? OPP. 2. Whether the plaintiff sold 5 bigha 17 biswas and 8 biswansi out of 23 bigha 9 biswas and 12 biswansi i.e. 1/4th share to Mohinder Singh defendant No.2 vide sale deed dated 22.5.1990? OPP 3. Whether the plaintiff is sole heir of Nahar Singh deceased ? OPP 4.Whether Nahar Singh executed a valid Will dated 5.2.1992 in favour of defendant No.1 ? OPD 5. Whether the suit as framed is not maintainable? OPD 6. Whether the plaintiff has no cause of action? OPD 7. Whether the plaintiff is estopped by his own act and conduct to file the instant suit ? OPD 8. Whether the suit is bad for non-joinder of necessary parties? OPD 9. Whether the suit is liable to be dismissed U/O 7 Rule 1 CPC 10. Relief.” R.S.A.No. 4178 of 2008(O&M) 4 The Civil Judge (Jr.Divn.) dismissed the suit of the plaintiff vide judgment and decree dated 15.5.2000. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was also dismissed vide judgment and decree dated 26.8.2008 passed by the Additional District Judge. Hence, the present appeal by the plaintiff. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. Admittedly, in the present case, the suit property measuring 23 bigha 9 biswas and 12 biswansi was owned by Nahar Singh and Inder Singh. The plaintiff got the share of Inder Singh out of the suit land to the extent of half share. Now the dispute remains with regard to the half share of Nahar Singh out of 23 bigha 9 biswas and 12 biswansi. The case of the plaintiff was that Sukhdev Kaur- defendant No.1 was not the daughter of Bhagwan Kaur and claimed himself to be the only legal heir of Bhagwan kaur being her son. Surprisingly, the plaintiff himself described defendant No.1 as daughter of Bhagwan kaur in the memo of parties. When the plaintiff appeared in the witness box, he could not tell the parentage of defendant No.1. Both the Courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that defendant No.1 was daughter of Bhagwan Kaur. The plaintiff was required to establish his plea that defendant No.1 was not the daughter of Bhagwan Kaur but had failed to do so. Defendant No.1 has alleged that Nahar Singh had executed a registered Will in her favour dated 5.2.1992. Will is a R.S.A.No. 4178 of 2008(O&M) 5 sacred document and comes into operation after the death of the executant. The propounder of the Will is required to establish due execution of the Will by examining atleast one of the attesting witnesses to the Will in terms of Section 68 of the Indian Evidence Act, 1872. The propounder of the Will is further required to dispel any suspicious circumstance surrounding the Will. Although registration of Will is not compulsory but it goes a long way in establishing its genuineness. To prove the due execution of the Will Ex.D-3, defendant No.1 examined DW-2 Darshan Singh, scribe of the Will and DW-3 Mohinder Singh, attesting witness to the Will. The said witnesses deposed with regard to due execution of the Will by Nahar Singh in favour of defendant No.1. The Will bears the thumb impressions of Nahar Singh. Nahar Singh had also thumb marked the Will at the time of registration. As per the endorsement of the Sub Registrar, the Will in question was duly read over to the executant. Thereafter, the executant had thumb marked the same after admitting its contents to be correct. Presumption of truth is attached to the endorsement made by the Sub Registrar. There is nothing on record to suggest that the said endorsement had not been correctly made. The attesting witnesses had also appended their signatures at the time of registration of the Will. The plaintiff has placed reliance on the report of the handwriting expert M.N.Mishra, who after comparing the thumb impressions of Nahar Singh on the Will Ex.D-3 with thumb impressions on the other Will and sale deed, opined that the same did not tally. A perusal of the report of the expert reveals that the questioned thumb impressions were totally ink smudged and hence were unfit for comparison. In these circumstances, the report of the R.S.A.No. 4178 of 2008(O&M) 6 expert fails to rebut the testimony of DW-2 Darshan Singh, scribe of the Will and DW-3 Mohinder Singh, attesting witness to the Will. The said witnesses have categorically deposed that Nahar Singh had executed the Will in their presence. The Courts below had, thus, rightly held that the Will Ex.D-3 was duly executed by executant Nahar Singh in favour of his niece defendant No.1. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE April 28, 2011 anita