RSA No.3022 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3022 of 2010 (O & M) Date of Decision: 09.08.2010 Balbir Parshad and others .....Appellants Versus Vir Parshad and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Amit Singla, Advocate for the appellants. L. N. MITTAL, J (ORAL) CM No.8997-C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 31 days in refiling the appeal is condoned. The application stands disposed of accordingly. Main Appeal. Defendant Nos.3 to 5, having remained unsuccessful in both the Courts below, have filed the instant second appeal. Suit was filed by Vir Parshad-respondent NO.1 against proforma respondent Nos.2 and 3 (defendant Nos.1 and 2) and against appellants (defendant Nos.3 to 5) alleging that Smt.Lila Wati was owner in possession of the suit property. Admittedly, plaintiff and defendant Nos.1 to 4 are sons and defendants No.5 is daughter of Lila Wati wife of Kidar Nath. According to the plaintiff, on the death of their mother Lila Wati, plaintiff and defendants being her natural heirs inherited the suit property in equal shares i.e 1/6th share each. Accordingly, the plaintiff sought declaration that he is owner in RSA No.3022 of 2010 (O & M) -2- possession of the suit property to the extent of 1/6th share and defendants are owners in possession of 5/6th share thereof and the plaintiff is entitled to get his name recorded in Municipal record and other record accordingly and defendants have no concern with 1/6th share of plaintiff in the suit property. Permanent injunction restraining the defendants from alienating the plaintiff's 1/6th share in the suit property in any manner was also claimed. Defendant Nos.1 and 2 admitted the claim of the plaintiff. Defendant Nos.3 to 5 contested the suit and inter alia pleaded that Lila Wati was not owner in possession of the suit property. Ramji Dass grandfather of the parties created a Trust of the suit property. The property continued in the name of the said Trust in Municipal record till 1985. Thereafter the entries were wrongly changed in the name of Lila Wati. It was also pleaded that Kidar Nath father of the parties executed Will dated 20.11.1984 regarding the suit property in favour of defendant No.3 only and accordingly defendant No.3 became owner in possession of the suit property after the death of Kidar Nath. Various other pleas were also raised. Learned Civil Judge (Senior Division), Hisar vide judgment and decree dated 14.03.2009 decreed the plaintiff's suit. First appeal preferred by defendant Nos.3 to 5 has been dismissed by learned Additional District Judge, Hisar vide judgment and decree dated 26.02.2010. Feeling aggrieved, defendant Nos.3 to 5 have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. RSA No.3022 of 2010 (O & M) -3- The case of the appellants is based on alleged Will dated 20.11.1984 claimed to have been executed by Kidar Nath in favour of defendant No.3. However, appellants-defendant Nos.3 to 5 have miserably failed to prove the execution of the Will. Admittedly no attesting witness of the Will has been examined to prove the said Will, although in view of Section 68 of the Evidence Act read with Section 63 of the Indian Succession Act, 1925, it was mandatory to examine at least one attesting witness of the Will to prove its execution. Section 63 of the Indian Succession Act requires that Will should be attested by at least two witnesses. Section 68 of the Evidence Act stipulates that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. In the instant case, however, no attesting witness of the Will has been examined by the appellant to prove its execution. Even original Will was not produced in evidence. Consequently, execution of the Will has not been proved. Excluding the Will, even on admitted facts, the suit had to be decreed. Appellants claimed that defendant No.3/appellant No.1 became owner in possession of the suit property in view of Will allegedly executed in his favour by Kidar Nath father of the parties. In other words, even according to contesting defendants/appellants, Kidar Nath was owner in possession of the suit property from whom defendant No.3 claimed to have inherited it under the alleged Will. The Will is not proved. Consequently, plaintiff and all the 5 defendants being 5 sons and 1 daughter of the deceased Kidar Nath were his natural heirs and inherited the suit property in equal shares. RSA No.3022 of 2010 (O & M) -4- Consequently, plaintiff has 1/6th share in the suit property. There is thus no infirmity in the concurrent finding recorded by the Courts below thereby decreeing the suit of the plaintiff. In fact no other conclusion could be arrived at in view of the admitted factual position. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is completely devoid of any substance and is accordingly dismissed in limine. 09.08.2010 ( L. N. MITTAL ) A. Kaundal JUDGE