RSA No.3493 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3493 of 2009 (O&M) Date of decision: 16.8.2010 Dalip Singh ......Appellant(s) Versus Pritam Kaur and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Vijay Lath, Advocate for the appellant. Rakesh Kumar Garg, J. This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent No.1 for declaration that she was owner in possession of the suit land with consequential relief of permanent injunction was decreed. As per averments made in the suit, one Jit Singh son of Chet Ram @ Chetu, who was the real brother of the plaintiff and defendants, was having 1/5th share in the land in dispute, and he died on 9.5.2004. The plaintiff who was deserted by her husband and was living at village Kotla Tapprian along with her brother Jit Singh who was an unmarried person. Pleased with the services of the plaintiff, Jit Singh executed a valid Will dated 1.1.2004 in her favour and after his death, the plaintiff became entitled to 1/5th share of Jit Singh and was also entitled to 1/5th share in the land in dispute in her own right and became owner of 2/5th share out of the land in dispute. However, defendants No.1 to 3 who are brothers of Jit Singh started claiming their right in the suit land and threatened to forcibly dispossess the plaintiff from the land in dispute. Hence, the present suit. Upon notice, the defendants appeared and contested the suit. RSA No.3493 of 2009 (O&M) 2 Defendants No.1 and 2 denied that the plaintiff was the owner of 2/5th share in the land in dispute and submitted that she was having only 1/5th share in the land in dispute. It was submitted that Jit Singh died on 9.5.2004. Jit Singh remained outside the village and whenever he was in village he used to stay with the defendants. The family of Dalip Singh used to render services to Jit Singh. The execution of the Will dated 1.4.2004 by Jit Singh was denied. All other averments of the plaint were denied and dismissal of the suit was prayed for. However, defendant No.3 in his written statement admitted the claim of the plaintiff-respondent. Later on, he did not appear and was proceeded against ex parte. The plaintiff filed replication to the written statement of defendants No.1 and 2 and reiterated her claim made in the plaint by denying the averments made in the written statement. Both the parties led oral as well as documentary evidence on record. After hearing learned counsel for the parties and perusing the record, the trial Court decreed the suit of the plaintiff-respondent No.1. Feeling dissatisfied with the aforesaid judgment and decree of the trial Court, the appellant i.e defendant No.1 only preferred an appeal which was also dismissed. While dismissing the appeal, the Lower Appellate Court held that the execution of the Will was established on record and there were no suspicious circumstances surrounding the execution of the Will in dispute. The relevant observations of the Lower Appellate Court read as follows: “First of all, there is no suspicious circumstance which surrounds execution of the Will in dispute proved on file as Ex.P4. The situation is very simple to the effect that deceased Jit Singh was RSA No.3493 of 2009 (O&M) 3 unmarried and issueless. His sister Pritam Kaur, respondent No.1 was also residing separately from her husband and deceased Jit Singh was residing with Pritam Kaur, respondent No.1, only. This fact stands corroborated from Ex.P3 copy of ration card. More so, from the oral evidence also it has come on file that deceased Jit Singh was residing with Pritam Kaur. It is also apparent from the contents of the Will Ex.P4 that deceased had special love and affection for respondent No.1 his sister as he was residing with her and she was rendering services to the deceased. This fact is mentioned in the Will itself that the deceased was very happy with the services rendered by respondent No.1. Out of love and affection deceased executed the said Will in favour of respondent No.1. The execution of which is fully proved on file by way on oath statements of PW1 Harbhajan Singh and PW2 Sucha Singh who are attesting witnesses of the said Will. Both these witnesses have stated that the said Will was executed by Jit Singh with his free will and consent and he had put his thumb impression on the said Will. The said thumb impression has not been got compared by appellant so as to rebut the evidence of respondent No.1. All these factors make this Court to believe that the said Will was actually executed by deceased Jit Singh in favour RSA No.3493 of 2009 (O&M) 4 of his sister Pritam Kaur respondent No.1. The mere fact that deceased was 72 years of age at the time of his death is not sufficient to reach at the conclusion that the deceased was not in a fit state of mind to execute the said Will especially in view of the fact that no evidence has been led by the appellant to prove on file that deceased was not keeping good health. Hence, the contentions of Ld. counsel for the appellant are not tenable. Similarly, the authority relied upon by Ld. Counsel for the appellant reported as K.Laxmanan vs. Thekkayil Padmini and others 2009(1) Recent Civil Reports, Page 389 (Supreme Court) is also not applicable to the facts of the present case as in that very case it was observed by the Hon'ble Supreme Court of India when there are suspicious circumstances due to various reasons, the Will cannot be relied upon but in the present case there is no suspicious circumstance regarding the execution of the said Will in question.” Still not satisfied, the appellant has approached this Court by way of this appeal. Learned counsel for the appellant has vehemently argued that there is misreading of oral as well as documentary evidence on record and therefore, the impugned judgment and decrees suffer from perversity. In support of his argument, learned counsel for the appellant has submitted that the execution of the Will in question is full of suspicious circumstances as the same was allegedly prepared after normal working hours of Tehsil RSA No.3493 of 2009 (O&M) 5 Office without explaining the urgency of preparing the same and that particulars of the scribe and the place of preparation have not been mentioned in the document and the same amounts to suspicious circumstance especially in view of the fact that the document is claimed to be executed in Tehsil complex. Learned counsel for the appellant has also referred to the contradictions in the versions of oral evidence of the witnesses and on the basis of the aforesaid argument, has stated that the following substantial questions of law arise in this appeal: “(I) Whether non mentioning of the name and address of the scribe and place of preparation in the document (alleged Will Ex.P-1) are suspicious circumstances particularly when the document (alleged Will Ex.P-1) is claimed to be executed in the Tehsil Complex where admittedly document writers use to sit? (II) Whether to claim the preparation of alleged Will after normal working hours of Tehsil Office particularly in peak winter session (01.01.2004) when sun use to set at 5.30 P.M without explaining the urgency of preparing the alleged Will is a suspicious circumstance? (III) Whether the misreading of the pleading and oral as well as documentary evidence on the record and perversity of finding arrived at by both the learned Courts below amounts to substantial question of law, which clearly and candidly gives power to this Hon'ble Court to interfere?” I have heard learned counsel for the appellant and perused the impugned judgment and decrees of the Courts below. From the impugned judgment and decree I find that both the RSA No.3493 of 2009 (O&M) 6 attesting witnesses of the Will in question have stepped into the witness box to prove on file that the said Will was executed by Jit Singh in favour of Pritam Kaur with whom he was residing. Moreover, Jit Singh was unmarried and issueless and the plaintiff-respondent was also residing separately from her husband and Jit Singh was residing with her. The aforesaid fact stands corroborated from Ex.P3, copy of ration card and the oral testimonies of the witnesses. The thumb impression of Jit Singh on the alleged Will has not been disputed by the appellant, neither the same was got compared by him to rebut the evidence of the plaintiff-respondent. In fact, there is no evidence on record which raises any doubt in the mind of the Court to hold that the alleged Will in question is not free from suspicion. Thus, in the absence of evidence to the contrary, no interference is warranted in the finding of fact recorded by the Courts below. No substantial question of law arises in this appeal. Dismissed. August 16, 2010 (RAKESH KUMAR GARG) ps JUDGE RSA No.3493 of 2009 (O&M) 7