R. S. A. No. 181 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 181 of 2011 (O&M) Date of Decision : February 25, 2011 Satvinder Kumar and others .... Appellants Vs. Bhupinder Kumar .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. M. P. S. Mann, Advocate for Mr. G. S. Sandhu, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 547-C of 2011 : For reasons mentioned in the application, which is accompanied by affidavit, delay of 08 days in re-filing the appeal is condoned. C. M. No. 548-C of 2011 : Allowed as prayed for. Main Appeal : Plaintiffs, having lost in both the courts below, are in second R. S. A. No. 181 of 2011 (O&M) 2 appeal. Plaintiffs no.1 and 2 and defendant-respondent Bhupinder Kumar are sons of Kharaiti Lal, whereas plaintiff no.3 is daughter of Kharaiti Lal. The plaintiffs' case is that disputed plot was purchased in the name of Santosh Kumari – mother of the parties with the earning of plaintiffs no.1 and 2 in the year 1973. Construction was raised thereon from 1973 to 1976 by plaintiff no.1. Plaintiffs no.1 and 2 are in possession of separate portions of the suit house depicted in red and green colours respectively in the site plan. Santosh Kumari died intestate leaving behind plaintiffs and defendant as her only legal heirs. Accordingly, the plaintiffs alleged that parties have inherited 1/4th share each in the suit property. It was also alleged that Santosh Kumari was holding the property as benamidaar. Defendant is in possession of area in excess of his share. He has forged and fabricated some Will, on the basis of which, he threatened to dispossess the plaintiffs from the suit house and refused to partition the same. Accordingly, plaintiffs filed suit for separate possession of their 3/4th share in the suit house by partition thereof. Ancillary relief of permanent injunction was also claimed. Defendant, while admitting relationship between the parties, broadly denied the other plaint allegations. Defendant pleaded that Santosh Kumari, who was owner of the suit house, bequeathed the same to plaintiffs vide valid Will dated 01.06.1992. Plaintiff no.1 had bad habits and R. S. A. No. 181 of 2011 (O&M) 3 remained away from home from 1987 to 1991. Father of the parties, who was in police department, had been maintaining the parties as well as their mother. Plaintiff no.2 was not doing any job. He was involved in nefarious activities and was, therefore, disinherited by his parents by publication in newspaper dated 02.03.1980. Suit property was purchased by defendant and Kharaiti Lal out of their funds in the name of Santosh Kumari. Plaintiffs were jobless at that time. Plaintiff no.1 is in illegal possession of the portion depicted in red colour in the site plan and he refused to vacate the same, whereas plaintiff no.2 never remained in possession of any portion of the suit property. Defendant is exclusive owner of the suit property. Various other pleas were also raised. Learned Civil Judge (Junior Division), Ludhiana, vide judgment and decree dated 27.02.2007, dismissed the plaintiffs' suit. First appeal preferred by the plaintiffs stands dismissed by learned Additional District Judge, Ludhiana, vide judgment and decree dated 08.09.2010. Feeling aggrieved, plaintiffs have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. The plaintiffs have taken contradictory stands in their plaint. The plaintiffs alleged that their mother Santosh Kumari was benamidaar and in fact, the plot was purchased from the income of plaintiffs no.1 and 2 and the construction was raised from the income of plaintiff no.1. If it was so, it R. S. A. No. 181 of 2011 (O&M) 4 is not explained what right plaintiff no.3 could possibly have in the suit property. Moreover, the plaintiffs in the suit claimed 3/4th share in the suit property on the basis of natural succession from their mother Santosh Kumari. This prayer of the plaintiffs would imply that Santosh Kumari was owner of the suit property. Thus, stand of the plaintiffs is self- contradictory. Moreover, plaintiffs cannot set up any claim on the basis of benami transaction in view of prohibition condition in Section 4 of the Benami Transactions (Prohibition) Act, 1988 (in short – the Act). Even otherwise, in view of prayer made by the plaintiffs on the basis of natural inheritance from Santosh Kumari, the case has to be proceed on the assumption that even according to the plaintiffs' version, Santosh Kumari was owner of the suit house. The crucial question to be determined is regarding Will dated 01.06.1992 set up by the defendant. If the said Will is proved, as held by the courts below, the plaintiffs have to fail in their suit, but if the said Will is held not proved, the plaintiffs have to succeed on the basis of natural succession. In order to prove the Will, defendant has examined both attesting witnesses of the Will namely Raunak Raj (DW-2) and Bhan Singh (DW-4). Both of them have stated about due execution of the Will by Santosh Kumari. Their statements could not be impeached in cross- examination. Added to it, the Will was registered one. Registration of Will R. S. A. No. 181 of 2011 (O&M) 5 further adds to its authenticity. Learned counsel for the appellants contended that the Will in question has been typed, but names of the witnesses are handwritten and therefore, it emerges that the attesting witnesses were not present when the Will was typed, but Raunak Raj (DW-2) stated that he was present at that time. Statements of attesting witnesses of the Will cannot be disbelieved merely on the basis of this contention. Even if the witnesses were present at the time of typing of the Will, their names might not have been typed, but were handwritten by the deed writer. It would not make the Will suspicious. This circumstance is not sufficient to discard the Will. Moreover, this circumstance further pales into insignificance because after the Will was executed at the seat of deed writer, it was presented for registration. At the time of registration also, the testatrix and witnesses thumb marked/signed the Will before the Sub Registrar. Consequently, the aforesaid contention does not raise any suspicious circumstance about the authenticity of the Will. Learned counsel for the appellants also contended that there was no reason to disinherit the plaintiffs. This contention is also not acceptable. Will is always executed to deviate from the normal line of inheritance. In the instant case, reasons have been assigned for disinheriting the plaintiffs. Plaintiff no.3 already stood married and was given due share in the form of cash/dowry etc. Plaintiffs no.1 and 2 were also married and R. S. A. No. 181 of 2011 (O&M) 6 were living separately. It was mentioned in the Will that they had also been given their share in the form of cash etc. and by spending on their marriages. It was also recited in the Will that plaintiffs no.1 and 2 were also not looking after the testatrix, who was being looked after by the defendant. Thus, sufficient reasons have been assigned in the Will for disinheriting the plaintiffs. Learned counsel for the appellants stated that the testatrix died on 10.07.1997 i.e. more than five years after the execution of Will. During the said period, the testatrix never challenged the authenticity of the Will nor cancelled the same. This circumstance further adds to the authenticity of the Will, in addition to the registration of the Will. It may be added that plaintiff no.2 was disinherited by both the parents i.e. Kharaiti Lal and Santosh Kumari as plaintiff no.2 was having vices. His parents Kharaiti Lal and Santosh Kumari affirmed affidavit Ex.D-3 and published notice Ex.D-4 in newspaper and also sent letter Ex.D-5 vide postal receipts Ex.D-6 to Ex.D-9 to Senior Superintendent of Police and other authorities disinheriting plaintiff no.2. This is added reason for executing the Will in question. For the reasons aforesaid, it is manifest that defendant has successfully proved Will dated 01.06.1992 executed by Santosh Kumari in his favour. Concurrent finding recorded by the courts below to this effect is justified by evidence on record and is supported by various reasons recorded by the courts below. The said finding is not shown to be perverse or illegal R. S. A. No. 181 of 2011 (O&M) 7 in any manner nor it is based on misreading of misappreciation of evidence so as to warrant interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal lacks any merit and is accordingly dismissed in limine. February 25, 2011 ( L. N. MITTAL ) monika JUDGE