RSA NO.2997 OF 2006 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA NO.2997 OF 2006 (O&M) DECIDED ON : 15.10.2009 Zile Singh & others ...Appellants versus Kaptan & others ...Respondents CORAM : HON'BLE MR. JUSTICE AJAY TEWARI Present : Mr. Pritam Saini, Advocate for the appellants. Mr. Avnish Mittal, Advocate for the respondents. **** 1.Whether Reporters of local newspapers may be allowed to see the judgment? 2.To be referred to the reporters or not? 3.Whether the judgment should be reported in the Digest? 4. AJAY TEWARI, J. (ORAL) This appeal has been filed against the order of the ld. Lower Appellate Court reversing that of the Trial Court and thereby dismissing the suit filed by the appellants challenging the Will dated 09.06.1999 executed by their mother Lado in favour of Kaptan-her grandson from her another son. The ld. Trial Court decreed the suit holding that it was established that Lado was so infirm and sick for a period of 5 – 6 months before her death that it must be held that she was not able to execute the Will. Ld. Appellate Court has noticed that within 15 days of the execution of the Will, aforesaid Lado had executed a sale deed which was never challenged. Ld. Appellate Court has further relied upon the fact that the Will was a RSA NO.2997 OF 2006 (O&M) -2- registered document, which also carried the photographs of the testatrix. The following questions have been proposed: i) Whether the Will dated 09.06.1999 is surrounded by suspicious circumstances which have not been dispelled by the defendants/respondent Kaptan in his evidence as such the Will dated 09.06.1999 and subsequent mutation No.6230 dt. 17.07.1999 are illegal, void and not binding upon the plaintiffs/appellants? ii)Whether the impugned judgment/decree passed by the ld. Addl. Distt. Judge, Jhajjar reversing the judgment and decree passed by the ld. Trial Court are perverse, result of misreading of evidence and are liable to be set aside? iii)Whether the findings recorded by the ld. Addl. Distt. Judge, Jhajjar that the Will in question was executed by Smt. Lado and mutation No.6230 dt. 17.07.1999 based on the Will is perfectly legal and valid, is without any legal admissible evidence on record? iv)Whether the active participation of Kaptan i.e. Beneficiary of will at every stage of execution and registration of Will in question is a suspicious circumstances which requires to be dispelled by the propounder of the Will? v)Whether deprivation of her three sons who are natural heirs of the property of the testator Smt. RSA NO.2997 OF 2006 (O&M) -3- Lado by executing the Will of her property in favour of her grand son & that too without assigning any reason in the Will in question, is itself a suspicious circumstances? vi)Whether grave and manifest injustice is being caused to the plaintiffs/appellants in the facts and circumstances of the case? It would be seen that all the questions are pure questions of fact. Learned counsel has argued that the presence of the beneficiary at the time when the Will was executed is a suspicious circumstance. He has relied upon the decision of Hon'ble Supreme Court in H. Venkatachala Lyengar vs. B. N. Thimmajamma & others reported as AIR 1959 Supreme Court 443, the relevant portion is mentioned as follows: “Apart from the suspicious circumstances above referred to in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decision of English Courts often mention the test of the satisfaction of judicial conscience. The lest merely emphasizes that in determining the question as to whether an RSA NO.2997 OF 2006 (O&M) -4- instrument produced before the Court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.” A perusal of the above said para shows that the Hon'ble Supreme Court was dealing with a situation where the beneficiary had taken a 'prominent part' in the execution of the Will, whereas in the present case it is only the presence of the beneficiary has been found, and that too by a process of deductive reasoning. Ld. Appellate Court has also found that since the alternative plea taken was that of a fraud, it was incumbent upon the appellant to prove how the beneficiary defrauded the testatrix. Neither any allegation nor any proof has been put forth in this regard. Learned counsel for the appellant has relied upon the evidence of Prithvi Singh who was the elder brother of testatrix. As per learned counsel, Prithvi Singh was totally an unbiased person and his testimony to the effect that his sister never told him about the Will shows that the Will was invalidly obtained. A perusal of the judgment of the ld. Appellate Court shows that the above said fact has been duly considered by it. Learned counsel has not been able to persuade me that the findings recorded are either based on no evidence or on such misreading of evidence, which render them so perverse as to justify interference under Section 100 of CPC. Consequently, this appeal is dismissed. Since the main case has been decided, all the pending civil miscellaneous RSA NO.2997 OF 2006 (O&M) -5- applications, if any, stand disposed of. October 15, 2009 (AJAY TEWARI) sonia JUDGE