R.S.A. No. 2372 of 2001 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 2372 of 2001 (O&M) Date of Decision : 31.3.2009 Malkiat Singh .......... Appellant Versus Hakam Singh & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Tarunveer Vashisth, Advocate for the appellant. Mr. A.S. Jattana, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 3.4.2001 passed by the learned Addl. District Judge, Mansa dismissing the suit filed by the plaintiff / appellant seeking declaration of ownership on the basis of will dated 10.5.1986. The plaintiff / appellant brought a suit against the mother of deceased Mohinder Singh the natural successor, to claim ownership on the ground that Mohinder Singh son of Kartar Singh executed a will dated 10.5.1986 in favour of the appellant / plaintiff. The Will was not scribed by the regular deed writer nor registered. The Will also bore signatures of four persons as attesting witnesses, instead of two which is normal case in execution of the Will. The R.S.A. No. 2372 of 2001 2 plaintiff / appellant in order to prove the Will examined the scribe and one of the attesting witnesses. The learned trial Court by accepting the evidence led by the scribe and one of the attesting witnesses upheld, the Will to have been validly executed, and decreed the suit. In appeal the learned lower appellate Court, has been pleased to reverse the finding of the learned trial Court primarily on the ground that Will dated 10.5.1986 bore the right thumb impression of Mohinder Singh instead of left thumb impression. The learned lower appellate Court found it to be a suspicious circumstance, which was not explained for want of medical evidence, nor the plaintiff / appellant was able to explain as to what was the injury suffered by Mohinder Singh which made thumb mark the right thumb impression, to execute the Will instead of left thumb impression. The Court held, that it was in fact an attempt to avoid the comparison of the left thumb impression of the deceased with admitted documents, which would only have left thumb impression of Mohinder Singh. The Court, thus, held that this was a major suspicious circumstance, which was not explained. The learned lower appellate Court also noticed the fact, that one of the attesting witnesses was said to have signed the Will ,however, the evidence on record by way of record of Cooperative Society, from where he had taken a loan, to show that witness used to put his thumb impression, and was unable to sign. This suspicious circumstance was not explained. The learned lower appellate Court, therefore, in view of the R.S.A. No. 2372 of 2001 3 suspicious circumstances, referred to above, and also that the Will was not scribed from the regular deed writer nor the same was got registered held that cumulative effect of all the suspicious circumstances, referred to above, led to a conclusion that the propounder of the Will failed to explain all the suspicious circumstances, and thus rejected the Will. Consequently, the suit filed by the plaintiff / appellant has been ordered to be dismissed by accepting the appeal. The learned counsel for the appellant contends that this appeal raises the following substantial questions of law for consideration by this Court :- 1. Whether the judgment and decree passed by the learned lower appellate Court is outcome of misreading of evidence and, therefore, perverse ? 2. Whether the learned lower appellate Court was justified in reversing the well reasoned judgment of the learned trial Court though the execution of the Will stood duly proved by examining the scribe and one of the attesting witnesses ? In support of the substantial questions of law, the learned counsel for the appellant contends, that the reasons for affixing right thumb impression was duly explained by scribe of the Will, when he appeared as PW1 wherein he had specifically stated that the left thumb of Mohinder Singh was injured and, therefore, he had to use the right thumb impression. It is also the contention of the learned counsel for the appellant R.S.A. No. 2372 of 2001 4 that the attesting witness also proved the due execution of the Will. The finding recorded by the learned lower appellate Court holding that Will was surrounded by suspicious circumstances is thus outcome of misreading of evidence on record, thus, perverse. It is also the contention of the learned counsel for the appellant that in the present case the Will was duly proved by examining the scribe and one attesting witness and, therefore, there was no reason for the learned lower appellate Court to have reversed the findings recorded by the learned trial Court. The learned counsel for the appellant contends that mere use of right thumb impression could not be a suspicious circumstance as this Court in the case of Bhagat Ram alias Bhagat Singh & others Vs. Shamsher Singh 1992 Civil Court Cases 602 (P&H) has been pleased to lay down as under :- “11. However, the learned counsel with a view to create dent in the findings of the Courts below, have laid much emphasis on the fact that the testator though literate is alleged to have thumb marked this disputed document. This by itself could be taken as circumstances creating suspicion but as the facts have come on record the reason for thumb marking the Will stands proved by the statement of the witnesses who have deposed that the testator had some injuries on his hand and so he thumb marked the document. Besides this, there is evidence on record that the deceased having of advance age at times had thumb marked the documents besides the Will in dispute. For this, the respondent referred to the sale deed Exhibit D-2 executed by Dasondhi Ram in the year R.S.A. No. 2372 of 2001 5 1971 which too was thumb marked by him. This being the position, there is not much merit in this objection of the counsel for the appellants.” The contentions raised by learned counsel for the appellant cannot be accepted. It would be seen that in the facts and circumstances of the case of Bhagat Ram alias Bhagat Singh & others Vs. Shamsher Singh (Supra) the suspicious circumstance of having thumb marked the Will, though the testator was literate was duly explained, but in the present case the learned lower appellate Court rightly observed that the witnesses even could not explain the type of injury suffered by the executant nor any explanation is forthcoming as to what pursuaded the testator not to execute fresh Will, as he died after six years after the execution of the Will. It cannot therefore be said that the findings recorded by the learned lower appellate Court are outcome of misreading of evidence or that the learned lower appellate Court has reversed the findings of the learned trial Court without assigning any good reason. It is well settled that it is for the propounder of the Will to explain all the suspicious circumstances, which surround the Will. The Court is to see the cumulative effect of suspicious circumstances to arrive at a conclusion whether the Will is a genuine document or not. The learned lower appellate Court rightly dismissed the suit by taking cumulative effect of all the suspicious circumstances to hold the Will is fictitious document and not a genuine document. The finding of fact has been recorded on appreciation of evidence, which cannot be said to be result of misreading as contended. R.S.A. No. 2372 of 2001 6 The substantial questions of law raised are answered against the appellant / plaintiff. The appeal is ordered to be dismissed with no order as to costs. 31.3.2009 ( VINOD K. SHARMA ) 'sp' JUDGE