RSA No.1777 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1777 of 2009 Date of decision: 12.10.2010 Mohinder Kaur ......Appellant(s) Versus Smt. Kuldeep Kaur and another ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. B.S. Bedi, Advocate for the appellant. Rakesh Kumar Garg, J. This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby her suit for declaration that she was entitled to inherit the estate of Mal Singh (since deceased) to the extent of 1/3rd share and a decree for joint possession, was dismissed. As per the averments, Mal Singh (father of the appellant and respondents) was owner in possession of the suit property and upon his death on 21.10.2000, appellant and defendant/respondents No.1 and 2 being his legal heirs were entitled to the entire property of Mal Singh to the extent of 1/3rd share each. However, the defendant-respondents claimed ownership of the entire property of Mal Singh on the basis of Will dated 19.3.1999 executed by him in their favour. The plaintiff-appellant has challenged the aforesaid Will alleging that the same was not by the free consent of the testator and the same might had been procured by misrepresentation and under undue influence and therefore, the present suit was filed for a decree for declaration to the effect that the plaintiff was entitled to inherit the estate of deceased Mal Singh to the extent of 1/3rd RSA No.1777 of 2009 2 share and for passing a decree for joint possession of the house and other properties mentioned in the plaint. The respondents filed written statement and admitted that Mal Singh was father of the plaintiff and defendants and was owner of the suit properties. It was further pleaded that one Mohar Singh, nephew of Mal Singh, by fraud and undue influence had obtained a Civil Court decree against Mal Singh with respect to the agricultural land. Mal Singh challenged the said Civil Court decree during his life time on the ground of fraud, misrepresentation and undue influence. Mal Singh was annoyed with the plaintiff on account of the fact that she was siding with Mohar Singh against whom Mal Singh had filed a civil suit challenging the aforesaid decree with respect to the agricultural land. It was further pleaded that in view of the execution of the Will in their favour, the plaintiff-appellant was left with no right or interest in the suit property belonging to Mal Singh. Thus, dismissal of the suit was prayed for. The plaintiff filed replication controverting the pleas taken in the written statement and reasserting the contents of the plaint. From the pleadings of the parties, the following issues were framed : “1. Whether the plaintiff being the legal heir of the deceased is legally entitled to inherit the estate of deceased Mal Singh to the extent of 1.3rd share as mentioned in the plaint? OPP 2. If issue No.1 is proved, whether the plaintiff is entitled for joint possession of the house, gun and the other properties mentioned in the para No.1 (b&c) of the plaint?OPP 2-A Whether the deceased Mal Singh had executed a RSA No.1777 of 2009 3 valid and legal registered Will dated 19.3.1999 in favour of Kuldeep Kaur etc., as alleged? OPD 3. Relief.” Both the parties adduced oral as well as documentary evidence in support of their respective assertions in the case. After hearing the arguments, the trial Court dismissed the suit filed by the plaintiff-appellant vide judgment and decree dated 3.10.2006. Aggrieved from the aforesaid judgment and decree, the appellant filed an appeal which was also dismissed by the Lower Appellate Court vide impugned judgment and decree dated 17.11.2008. Still not satisfied, the plaintiff-appellant has filed the present appeal challenging the judgment and decrees of the Courts below submitting that the following substantial questions of law arise in this appeal: “(i) Whether the genuineness of the Will can be proved in the absence of examination of attesting witness? (ii) Whether the testimony of Sub Registrar is sufficient to prove the genuineness of the Will to the satisfaction of mandatory provisions of Section 63 of the Indian Evidence Act?” (iii) Whether the scribe can be treated as a witness and the effect of scribing the signatures on the part of scribe can be identified to be of the same status as that of the attesting witness? (iv) Whether disinheritance amongst heirs of equal degree is valid for no valid reason for exclusion of one of the legal heirs and the Will excluding one of the legal RSA No.1777 of 2009 4 heirs, can be said to be genuine? (v) Whether the Will can be said to be genuine when the cause/ground of disinheritance of one of the legal heirs shown in the Will, is not proved and such a Will is shrouded by suspicious circumstances, can be held to be valid? (vi) Whether the Will shrouded by suspicious circumstances can be held to be valid and not ignored? (vii) Whether in the absence of testimony of attesting witness, the Will fails for want of proof?” In support of his appeal, learned counsel for the appellant has vehemently argued that in the present case, the Will dated 19.3.1999 has not been proved in accordance with law as none of the attesting witnesses of the Will has been produced to prove the execution of the Will and therefore, the judgment and decrees of the Courts below cannot be sustained. It is the further case of the appellant that scribe and the Sub Registrar, who had endorsed the Will in question cannot be treated as attesting witness of the Will to satisfy the mandatory provisions of Section 63 of the Indian Evidence Act and thus, the Will in question cannot be held to be proved in the absence of testimony of attesting witnesses and thus, the suit of the appellant is liable to be decreed as prayed. In support of his case, learned counsel for the appellant has placed reliance upon the judgments reported as M.L. Abdul Jabbar Sahib v. H. Venkata Sastri and Sons and others etc. AIR 1969 Supreme Court 1147, N. Kamalam (dead) and Anr. v. Ayyasamy & Anr. JT 2001 (6) SC 219, Janki Narayan Bhoir v. Narayan Namdeo Kadam, JT 2002 (10) SC 340 and Jamuna Devi v. Sarbati Devi (died) through L.R's 2004(3) Civil Court Cases 0040 I have heard learned counsel for the appellant and perused the RSA No.1777 of 2009 5 impugned judgment and decrees. The judgments cited by the learned counsel for the appellants are not applicable on the facts of the case. In Janki Narayan Bhoir's case (supra) the only witness who was examined had not supported the Will but the High Court treated the scribe (who had not attested the Will) as attesting witness and in those circumstances, the Hon'ble Apex Court held that scribe cannot be teated as attesting witness. In Jamuna Devi's case (supra), this Court relied upon Janki Narayan Bhoir's case(supra) but noticed the judgments of this Court in Lila Dhar v. Smt. Badho and another 1994(1) PLR 525, Kartar Kaur v. Bhagwan Kaur, 1993(1) RRR 247 (P&H), Mohinder Kaur v. Harbajan Singh, 2002(1) RCR (Civil) 134 (P&H), Lal Singh and another v. Bant Singh and others, AIR 1983 Punjab and Haryana 384 and Sita Ram v. R.D. Gupta and others, AIR 1981 Punjab and Haryana 83, wherein it is held that the Sub Registrar or the scribe of the Will can be treated as a witness to prove the due execution of the Will, if there is no other suspicious circumstance but did not rely upon these judgments observing that there was a suspicious circumstance. In N. Kamalam's case (supra), the scribe had identified himself as scribe of the document. In the present case, admittedly testimony of Gurbachan Singh, one of attesting witnesses of the Will, which was recorded in a previous suit, has been tendered into evidence in this case. Not only this, the scribe and the Sub Registrar, while appearing as DWs have stated that the testator had signed/thumb marked the Will in question in their presence and in the presence of other witnesses and they have also signed the same in their presence and in the presence of testator. Moreover in a registered Will there is a strong presumption in favour of valid execution of the Will. RSA No.1777 of 2009 6 Thus, keeping in view the totality of the circumstances and relying upon the judgments of this Court in Lila Dhar's & Kartar Kaur's case (supra) wherein it has been held that the Sub Registrar or the scribe can be treated as a witness to prove the due execution of the Will, if there is no other suspicious circumstance, I find no merit in the argument raised by the learned counsel for the appellant. The statement of Gurbachan Singh, who has since expired and whose statement was recorded in the previous civil suit, can be read as evidence in this case in view of the provisions of Section 63 of the Indian Evidence Act and thus, no fault can be found with the findings of the Courts below which have held that the Will in question was validly executed in favour of the respondents. In view of the aforesaid discussion, no substantial question of law arises in this appeal. Dismissed. October 12, 2010 (RAKESH KUMAR GARG) ps JUDGE