RSA No.2908 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2908 of 2009 (O&M) Date of decision: 7.1.2010 Manjit Singh and others ......Appellant(s) Versus Darshan Singh and another ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mrs. Ekta Thakur, Advocate for the appellants. Rakesh Kumar Garg, J.(Oral) This is defendants' regular second appeal challenging the judgment and decrees of the Courts below whereby the suit of the plaintiff- respondent for declaration and consequential relief of possession of the suit land, has been decreed holding that the Will dated 22.6.1989 was not executed by Ranjit Kaur in a free disposing state of mind and therefore was void, illegal and inoperative. As per the averments, the plaintiff-respondent filed a suit for declaration to the effect that he is entitled to get 70/1239 share out of land measuring 61 kanals 19 marlas, being 1/4th share of deceased Ranjit Kaur, situated in village Bagol Khurd, Tehsil Dasuya, District Hoshiarpur, fully detailed in the headnote of the plaint and, further for possession of the suit land and that the Will dated 22.6.1989 was void, illegal and in operative. It was averred in the suit that the plaintiff-respondent and defendants No.1 to 3 are sons and defendant No.4 is the daughter of late Santokh Singh. Ranjit Kaur (deceased) was the mother of the parties. As per the case of the plaintiff-respondent, Ranjit Kaur was owner and in joint possession of the land in dispute, who died on 30.12.1994 and on her RSA No.2908 of 2009 (O&M) 2 death, plaintiff and defendants became joint owners in possession of land owned by her, being her legal heirs and the mutation of the suit land which was sanctioned in the names of defendants No.1 to 3 (appellants) on the basis of forged and fabricated Will dated 22.6.1989 was wrong and inoperative in the eyes of law and thus, the defendant-appellants have no right or title over the suit property more than their share. The appellants in their written statements raised various preliminary objections. On merits, the relationship between the parties was admitted. It was also admitted that the deceased Ranjit Kaur was owner and was in joint possession of the suit land. The factum of death of Ranjit Kaur was also admitted. It was further stated that defendants No.1 to 3 (appellants) were the only legal heirs of deceased Smt. Ranjit Kaur on the basis of valid registered Will dated 22.6.1989 executed by her in favour of the defendants and mutation was rightly and legally sanctioned in favour of the defendants on the basis of Will. Defendant No.4 Harjinder Kaur was impleaded vide order dated 20.8.1999. She was duly served. However, she failed to appear and was proceeded against ex parte. From the pleadings of the parties, the following issues were framed: “1. Whether plaintiff is entitled to declaration prayed for?OPP 2. Whether valid Will dated 22.6.89 was executed by Ranjit Kaur? OPD 3. Whether the suit is bad for non-joinder of necessary parties? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Relief.” RSA No.2908 of 2009 (O&M) 3 On appreciation of evidence, the trial Court returned the findings on issues No.1, 2 and 4 in favour of the plaintiff-respondent and against the appellants. Issue No.3 was disposed of being not pressed. Consequently, the suit was decreed and plaintiff-respondent was held entitled to get 70/1239 share out of the suit land, situated in village Bagol Khurd, Tehsil Dasuya, District Hoshiarpur and for possession of the suit land and further the Will dated 22.6.1989 was declared void, illegal and inoperative. Feeling aggrieved against the aforesaid judgment and decree of the trial Court, the appellants filed first appeal which was dismissed by the Additional District Judge, Hoshiarpur, vide impugned judgment and decree dated 12.3.2009. While dismissing the appeal, the findings on issues No.1 and 2 were affirmed and it was held that Will Ex.D2 was not the outcome of free disposing state of mind of Ranjit Kaur. However, it was held that the plaintiff-respondent was entitled to 1/5th share of the suit land. Since no arguments were addressed on issues No.3 and 4, the findings of the trial Court on aforesaid issues were affirmed. Feeling not satisfied with the judgment and decree of the Lower Appellate Court, the appellants have filed the instant appeal arguing that the following law points arises: “(i) Whether registered Will can be disbelieved for the reason that one of natural heirs who is deprived in the Will, was marginal witness and took part at the time of execution of the Will and also supported the Will by appearing in the case as witnesses supporting the case of propounders of the Will? (ii) Whether the Will duly proved as per law by examining the attesting witness as well as scribe can be RSA No.2908 of 2009 (O&M) 4 disbelieved merely on the alleged plea that spacing in the Will was not proper, which is otherwise very natural and normal? (iii) Whether the registered Will of testatrix executed about more than 5 ½ years before her death can be discarded, whereas, the same could have been cancelled if it was not voluntarily executed by her?” In support of the appeal, learned counsel for the appellants has vehemently argued that the oral and documentary evidence on record has been misread and misappreciated by both the Courts below resulting in great prejudice to the case of the appellants and therefore, the impugned judgments and decrees of the Courts below cannot be sustained in the eyes of law. Elaborating further, learned counsel for the appellants has vehemently argued that the exclusion of any legal heir by itself cannot be regarded as a suspicious circumstance and the law is well settled that if the execution of the Will is proved, its contents and the manner in which the property is disposed of cannot be gone into by the Court and merely disheritance of such a legal heir by itself is no ground to doubt the genuineness of the Will nor this fact itself can create suspicion. Moreover, non mentioning of the names of other legal heirs in the Will cannot be a reason to doubt the validity of the Will. In support of his case , learned counsel for the appellants has relied upon a judgment of the Delhi High Court in the case of S.Amarjit Singh v. State 1998(4)RCR(Civil) 49. I have heard learned counsel for the appellants and perused the impugned judgment and decrees of the Courts below. The argument raised by the learned counsel appearing on behalf of the appellants on the basis of the aforesaid judgment of the Hon'ble Delhi High Court seems to be without any merit. RSA No.2908 of 2009 (O&M) 5 While non-suiting the appellants, the Courts below after considering the totality of the circumstances i.e. exclusion of the plaintiff- respondent who is the eldest son of testatrix, the fact that defendant Harjinder Kaur was present before the Sub Registrar and still not signing the Will in question and that the thumb impression of testatrix appeared on first page as well as on the second page of the Will goes to show that the thumb impressions were not put after the Will was scribed but it appeared that the thumb impressions were already there and the Will was scribed thereafter. In view of the language of the Will and there being no occasion for the Sub Registrar to ascertain whether Smt. Ranjit Kaur had any other son, namely, Darshan Singh, it has been rightly held that the Will in question was not the outcome of free disposing state of mind of Ranjit Kaur and the same is shrouded by suspicious circumstances. Both the Courts below on appreciation of evidence available on record have returned a concurrent finding of fact with regard to the authenticity of the Will. Even before this Court, learned counsel for the appellants was unable to point out any material evidence on the basis of which the findings of the Courts below could be found faulted with. No other point was urged. Thus, I find no merit in this appeal. No substantial question of law as raised arises in this appeal. Dismissed. January 7, 2010 (RAKESH KUMAR GARG) ps JUDGE