Regular Second Appeal No. 2806 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2806 of 2009 Date of Decision: August 28, 2009 Muni Ram and another ......... Appellants versus Sandeep Kumar .......... Respondent Present:- Shri Harkesh Manuja, Advocate for the appellants. HEMANT GUPTA, J. The plaintiffs are in second appeal aggrieved against the judgment and decree passed by the learned Courts below whereby plaintiffs' suit for declaration claiming the estate of Khem Chand deceased as natural heirs, was dismissed. The plaintiffs claimed that they along with other sons and daughters of Prabhu and sons of Ratia are entitled to the estate of Khem Chand. Khem Chand has died issueless. Ratia and Prabhu are the brothers of Khem Chand. The defendant denied that the plaintiffs along with other sons, daughters of Parbhu and sons of Ratia are entitled to succeed to the estate of deceased Khem Chand. In fact, Khem Chand has executed a registered Will dated 6.5.1999 in favour of Sandeep son of Dharambir, grand-son of Ghasi, another brother of Khem Chand, which was scribed by Satpal Malik and attested by Puran and Lakhi Ram. Said Sandeep Kumar was living with Regular Second Appeal No. 2806 of 2009 [2] Khem Chand since his childhood and was treated by Khem Chand as his son. Therefore, the defendant succeeds to the property of Khem Chand. On the pleadings of the parties, the issue which required determination was whether the defendant succeeds to the estate of Khem Chand on the basis of registered Will dated 6.5.1999. The execution of the said Will is sought to be proved by examining attesting witnesses Lakhi and Puran Mal, DW1 and DW2 respectively, who have proved the Will Exhibit D-1. The execution of the Will was not disputed before the learned trial Court. It is so recorded in Para No.13 of the judgment of the learned trial Court. What was disputed was that the Will is result of fraud and misrepresentation and surrounded by suspicious circumstances. It has been found that the plaintiffs have not led any evidence that deceased Khem Chand was not of sound disposing mind. On the basis of statement of DW5 Dharambir that Sandeep was living with Khem Chand and the Will has been executed as a result of love and affection between the minor and deceased Khem Chand, was the finding recorded by the learned trial Court. The said finding was affirmed by the learned First Appellate Court. The learned First Appellate Court also noticed that defendant is great grandson of Ghasi, brother of deceased Khem Chand. Learned counsel for the appellants has vehemently argued that the statement of the attesting witnesses do not satisfy the requirement of an attesting witness in terms of Sections 63 Indian Succession Act, 1925 and 68 of the Indian Evidence Act, 1872. It was contended that the witnesses have not deposed that the testator has thumb-marked the Will in the presence of the witnesses and the witnesses have signed or thumb-marked such Will in the presence of the testator. It is also contended that the Regular Second Appeal No. 2806 of 2009 [3] statements of the witnesses would show that the attesting witnesses have signed earlier in point of time than the testator, therefore, from the statements of the attesting witnesses, the execution of the Will cannot be said to be proved. The said argument is without any merit for more than one reason. Firstly, before the trial Court, learned counsel for the appellants had made a categorical statement that he does not dispute the due execution of the Will. Once the execution of the Will is not disputed, the appellants cannot be permitted now to argue in the second appeal that the execution of the Will is not proved. In fact, learned counsel for the appellants before the learned trial Court was justified in law in conceding that the execution of the Will is proved. DW1 Lakhi, Lambardar, in his affidavit in examination-in-chief has averred that Satpal Malik, Deed Writer, has scribed the Will and he thumb- marked and Puran Mal signed the Will as attesting witnesses. Khem Chand has also thumb-marked the Will out of his free will and mind. Thereafter, even before the Tehsildar, he and Khem Chand thumb-marked the Will and Puran Mal signed the same. On the basis of the said statement in affidavit, it was averred that the sequence of events of averments shows that Khem Chand has thumb-marked after the attesting witnesses have put in thumb- mark and signatures. The said argument is based upon surmises and conjectures. The witnesses have not been cross-examined about the sequence of obtaining thumb-marks of the witnesses. In the affidavit, it is not averred that Khem Chand has thumb-marked the same earlier or Puran Mal has signed the same earlier than the testator. The mere fact that the recital of thumb-impressions of Khem Chand appear later than the thumb- Regular Second Appeal No. 2806 of 2009 [4] impressions of the witness in the affidavit, it cannot be said that Khem Chand thumb-marked after the thumb-impression of the witness. Even DW4 Satpal Malik, scribe, has not been cross-examined on the question of sequence of signatures. Therefore, from the testimony of the witnesses, it cannot be said that Khem Chand has thumb-marked the Will after the Will is attested by the attesting witnesses. The argument that the attesting witnesses have not deposed that the attesting witnesses and the testator have signed in the presence of each other is again not tenable. The words of the statute are not required to be reproduced in a mechanical manner. Whether the testator and the attesting witnesses have signed in the presence of each other is a question of fact which can be determined from the statements of the witnesses. There is no cross-examination to the effect that the attesting witnesses and the testator have not signed in the presence of each other. A reading of the entire statement of the attesting witnesses does not lead to any inference that the testator and the attesting witnesses have not signed in the presence of each other. The finding of fact recorded by the learned Courts below is sought to be disputed by way of re-appreciation of evidence. I do not find that the finding recorded by the learned Courts below suffer from any patent illegality or material irregularity which may give rise to any substantial question of law for determination by this Court in second appeal. Dismissed. August 28, 2009 ( HEMANT GUPTA ) ks JUDGE