R.S.A.No. 2417 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2417 of 2009 (O&M) Date of decision: 4.12.2009 Gurcharan Singh and another ......Appellants Versus Gurdev Kaur and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Bhag Singh, Advocate, for the appellants. **** SABINA, J. Plaintiffs-appellants filed a suit for possession, which was dismissed by the Civil Judge (Jr.Divn.), Ambala vide judgment and decree dated 19.2.2008. In appeal, the said judgment and decree were upheld by the Additional District Judge, Ambala vide judgment and decree dated 17.3.2009. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. The dispute in the preset case pertains to the R.S.A.No. 2417 of 2009 (O&M) 2 estate of Santu Ram Kahar son of Chuhara Ram son of Sheru, who died unmarried , issueless. Appellants had filed the suit in the court of Civil Judge (Senior Division), Ambala inter alia on the allegations that Santu Ram was brought up by their grandfather Shri Kahna Ram. After the death of Kahna, Santu Ram started residing with their father (appellant's father). They used to render services to him. Santu Ram used to treat them as their grandchildren. Santu Ram died on 25.3.1994. His last rites were performed by them. Shri Santu Ram was owner of the land, fully detailed in the heading of the plaint (hereinafter 'suit land'). Santu had executed a Will in their favour on 5.5.1988, which was registered on 9.5.1988 at the office of Sub Registrar Barara. Shri Santu Ram was co-owner along with respondents and others. However, there was oral partition between all the co- owners and respondent No.3 was in peaceful possession of specific khara numbers of the whole of the land left by deceased Santu Ram. It was alleged that immediately, after the death of Santu Ram, respondents No.1 and 2 raised a dispute with respondent No.3 (father of appellants) in regard to the inheritance of Shri Santu Ram and asked respondent No.3 to get the suit land mutated on the basis of the cancelled Will dated 6.3.1986 R.S.A.No. 2417 of 2009 (O&M) 3 before AC II Grade and had also complained to the higher ups but without any result. The mutation No.1128 is illegal, null and void and consequently the orders of AC II Grade dated 8.4.1994 and of Collector dated 30.9.1994 and of Financial Commissioner dated 11.10.1996 are illegal, null and void. On these facts, appellants had filed the suit for possession as owners in equal shares of the land, as fully described in columns A & B of the plaint and for actual possession on specific land, as mentioned in the heading of the plaint and for declaring mutation No.1128 and subsequent orders passed revenue officers as illegal, null and void. 3. Respondent No.3 in the written statement had admitted the claim of the Appellants and had prayed that the suit be decreed. However, respondents No.1 and 2 i the written statement had died unmarried issueless on 25.3.1994. However, it was denied that he was brought up by the grandfather of the appellants and father of the appellants and after him, appellants had rendered services to him. Respondents No.1 and 2 had denied that Will dated 5.5.1988. It was alleged that Santu Ram was not in a sound disposing mind at the time of execution of the Will dated 5.5.1988. The Will was stated to be false and forged one. The Will of Santu dated R.S.A.No. 2417 of 2009 (O&M) 4 6.3.1986 was stated to be a valid Will. Accordingly, it was alleged that suit of the appellants was misconceived and the same be dismissed. The suit was also resisted on the ground of maintainability. It was also alleged that Banta Ram, father of the Appellants had earlier filed a suit against them and the same was dismissed on 12.8.1995. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether late Santu Ram executed a valid Will dated 9.5.1988 in favour of plaintiffs? OPP 1. If issue No.1 is proved, whether the plaintiffs are entitled to the decree of join possession as prayed? OPD 3. Whether mutation No.1128 and the subsequent orders passed by the revenue authorities are liable to be declared illegal null and void? OPD 4. Whether late Santu Ram executed a valid Will dated 6.3.1986? If so its effect OPD 1 and 2 5. Whether the suit is not maintainable in the present form? OPD 6. Relief. After hearing learned counsel for the appellants, I am of the opinion that the present appeal deserves to be dismissed. The plaintiffs had filed a suit for joint possession basing R.S.A.No. 2417 of 2009 (O&M) 5 their claim on Will dated 9.5.1988 executed by Santu Ram. Admittedly, Santu Ram had initially executed a Will dated 6.3.1986. The case of the plaintiffs was that while executing a Will dated 5.5.1988, the earlier Will executed by Santu Ram had been cancelled and the later Will was executed by Santu Ram in favour of the plaintiffs-appellants. Santu was admittedly the owner of the suit property and had died in the year 1994 un-married and issueless. Vide the earlier Will, Santu had bequeathed the suit land to the appellants and respondents. The plaintiffs, however, failed to prove the due execution of the later Will dated 5.5.1988 by examining one of the attesting witnesses of the Will. Section 68 of Indian Evidence Act, 1872 reads as under:- “Proof of execution of document required by law to be attested- 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 providing its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908) unless its execution by the person by whom R.S.A.No. 2417 of 2009 (O&M) 6 it purports to have been executed is specifically denied. Thus, in order to prove due execution of the Will, plaintiff- propounder of the Will was required to examine atleast one of the attesting witnesses of the Will. The plaintiffs had, however, failed to do so in the present case and consequently, mere examination of Registration Clerk is not sufficient to prove the due execution of the Will. The defendants examined Chura Ram as DW-1, who had allegedly attested the Will in question. It was not suggested to the said witness that the Will was scribed by Sushil Kumar and he along with Chamela Ram had attesting the same. In these circumstances, the Courts below rightly held that the Will dated 5.5.1988 registered on 9.5.1988 had not been duly proved. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE December 04, 2009 anita