R.S.A.No.2271 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.2271 of 2009 Date of Decision : July 20, 2009 Narinder Kaur and Others ...Appellants Versus Ranjit Kaur @ Pinki and Others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Ms. Ravinder Kaur Manaise, Advocate, for Mr. Amandeep Singh Manaise, Advocate, for the appellants. Mr. K.R.Dhawan, Advocate, for respondent No.1. HEMANT GUPTA, J. Legal heirs of defendant Nos.1, 7, 8 and 9 are in second appeal aggrieved against the judgment and decree passed by the Courts below in a suit for declaration and possession filed by plaintiff-respondent Nos.1 and 2. The plaintiffs have filed the present suit for possession and declaration claiming the estate of deceased Harcharan Singh being his daughters. Harcharan Singh died on 14.2.1985. The present suit has been filed after the plaintiffs attained the age of majority. Defendant No.2 is the mother of deceased Harcharan Singh, whereas defendant No.3 is the mother of the plaintiffs and wife of deceased Harcharan Singh. In view of the fact that mother and wife of deceased Harcharan Singh were impleaded as defendant Nos.2 and 3, the plaintiffs claimed half share in the estate of deceased Harcharan Singh as his daughters. R.S.A.No.2271 of 2009 2 The plaintiffs also pointed out that defendant No.4 alleges herself to be widow of deceased Harcharan Singh, but marriage, if any, of defendant No.4 with deceased Harcharan Singh is void as Harcharan Singh was not legally divorced from his wife-defendant No.3. Defendant No.5 is the son of Harcharan Singh through his alleged wedlock with defendant No.4. The plaintiffs also challenged that mutation sanctioned in favour of defendant No.1 on the basis of Will dated 17.2.1984 allegedly executed by Harcharan Singh. It was alleged that the mutation is illegal and the Will is false, illegal and null & void and has no affect on the rights of the plaintiffs. Defendant Nos.1, 2 and 6 filed a joint written statement pointing out that defendant No.3 has executed a writing of taking of dowry articles and other belongings with her. Harcharan Singh solemnized marriage with defendant No.4 and son defendant No.5 was born out of the said wedlock and, therefore, the plaintiffs are not entitled to any share in the estate of deceased Harcharan Singh. Will dated 17.2.1984 was relied upon and it was asserted that the same was scribed by Subash Chander, Deed Writer and witnessed by Kulwant Singh Sandhu and Hari Chand, Ex-Lamberdar of Village Tibbi Araian. Thus, the mutation of inheritance has been legally sanctioned in favour of defendant No.1 on the basis of registered Will. In a separate written statement filed on behalf of defendant Nos.4 and 5, it was asserted that Harcharan Singh has solemnized second marriage with defendant No.4 and out of the aforesaid wedlock defendant No.5 was born. It was also asserted that defendant No.1 used to serve Harcharan Singh as well as defendant Nos.4 and 5. R.S.A.No.2271 of 2009 3 In a separate written statement filed on behalf of defendant Nos.7, 8 and 9, it was asserted that they have purchased property from Rachhpal Singh, who was recorded as owner of the suit property in the jamabandi for the year 1985-86 and 1990-91. It was alleged that the said defendants are purchasers for valuable consideration and without notice and hence they are bona fide purchasers. Both the Courts have decreed the suit holding that the defendant No.1 has failed to prove the execution of the Will. It was also held that the said Will is surrounded by suspicious circumstances. The facts which weighed with the Courts below are that the original Will has not been produced. Both the attesting witnesses are reported to have died, but only son of Kulwant Singh has been examined, who has identified the signatures of his father. The scribed examined by the defendants does not know the testator or the attesting witnesses. Therefore, on the basis of such evidence, it cannot be said that the Will dated 17.2.1984 was executed by the deceased testator. While considering the suspicious circumstances surrounding the Will, it found that there is no reason as to why the plaintiffs have been excluded from inheritance even if Harcharan Singh has any dispute with his wife i.e. the mother of the plaintiffs. Still further, the exclusion of defendant Nos.4 and 5 from inheritance of Harcharan Singh is a strong circumstance as it is the stand of defendant Nos.1 and 2 as well as defendant Nos.4 and 5 that defendant No.4 married Harcharan Singh and gave birth to defendant No.5 out of her wedlock with Harcharan Singh. Said circumstances were taken into consideration to determine the finding that execution of Will is surrounded by suspicious circumstances. R.S.A.No.2271 of 2009 4 Before this Court, learned counsel for the appellant has vehemently argued that the appellants were permitted to prove Will by secondary evidence and, therefore, the fact that the original Will has not been produced cannot be taken into consideration as a fact against the appellants. It is also contended that both the attesting witnesses have died, therefore, the evidence of Simaranjit Singh (DW-2) and Subhash Chander (DW-4), is sufficient to prove the execution of the Will. The suspicious circumstances were alleged to be imaginary since the execution of the Will is proved. It is also contended that Will is registered, therefore, the registration of the Will is a strong circumstance in respect of execution of the Will. It was also argued that defendant Nos.7, 8 and 9 are purchasers for valuable consideration, therefore, the sale in their favour by defendant No.1, could not have been set aside. Reliance is placed upon Daljinder Singh Vs. Harbans Kaur 2001(2) RCR (Civil) 294, Gurdev Singh Vs. Shakuntla and others 2004(2) P.L.R. 718, Anup Singh Vs. Smt. Bachni @ Bachan Kaur 1996(3) P.L.R. 184, Jagan Nath and others Vs. Raj Kumar and others 1986 (2) P.L.R. 101 and Ombir and another Vs. Mohinder and others 2006(4) RCR (Civil) 798, in support of the contentions raised. Having heard learned counsel for the parties for sometime, I do not find any merit in the present appeal. The beneficiary of the Will i.e. Defendant No.1 has not produced the original Will. The original Will was not produced even in proceedings for sanction of the mutation of the estate of deceased Harcharan Singh. Defendant No.1 appeared as DW-6. Even, in his statement, he has not explained the circumstances under which the original Will has been lost. Since the entire claim of defendant R.S.A.No.2271 of 2009 5 No.1 is based upon Will and he being the sole beneficiary, the original Will was supposed to be in his possession. The same has not been produced. Even, the loss of said Will has not been proved. Therefore, the finding recorded by the Courts below that execution of Will is not proved, cannot be said to illegal or irregular in any manner. The son of Kulwant Singh has indentified the signatures of his father. Identification of his signatures is not sufficient proof of execution of the Will. The other evidence in respect of proof of Will is that of Deed Writer (DW-4). The said Deed Writer does not know either the testator or the attesting witnesses. Therefore, on the basis of his testimony, it cannot be said that it was deceased Harcharan Singh, who signed the Will in the presence of the attesting witnesses and that attesting witnesses signed in the presence of testator. The reliance of learned counsel for the appellants on Daljinder Singh's case (supra) is misconcieved. That was a case where a finding was returned that Will was executed by a person of competent understanding. The registration of a Will was taken as a ground to dispel suspicious circumstances. In the present case, the execution of Will itself is not proved. In Gurdev Singh's case (supra), on fact it was found that exclusion of the daughters have been duly explained in the Will. The testator remained alive for more than 9 years after the registration of the Will. Such factors were taken into consideration to dispel that there were any suspicious circumstances in exuecution of the Will. The said judgment is again of no assistance to the learned counsel for the appellants as such factors were taken into consideration to dispel the R.S.A.No.2271 of 2009 6 suspicious circumstances, whereas in the present case the Will has not been proved to be executed itself. Therefore, the finding recorded by the Courts below, that Rachhpal Singh, the beneficiary has not been able to prove the due execution of the Will, is based upon proper appreciation of evidence and does not call for any interference in the second appeal. Even if, it is assumed that the Will is proved to be executed, the same has been found to be surrounded by suspicious circumstances. As per the stand of defendant Nos.1 and 2, deceased Harcharan Singh married Madanjit Kaur and she was living with Harcharan Singh as his wife. She had a son Dilbag Singh, but both of them have been excluded from inheritance. No reason is forthcoming in respect of their exclusion. Even Gurmeet Singh another brother of defendant No.1 and Harcharan Singh has been excluded from inheritance. No reason is forthcoming as to his exclusion as well. Such factors taken into consideration by the Courts below, are the possible factors to return a finding of fact that the Will propounded to be executed by Harcharan Singh is surrounded by suspicious circumstances. It was further argued that defendant Nos.7 to 9 are the bona fide purchasers for valuable consideration. Reliance was placed upon Anup Singh's and Ombir's cases (supra). However, the said argument is again not tenable. As per evidence on record, which is apparent from memo of parties of the present appeal, defendant No.1 and the purchasers are residents of the same village. The factor that defendant No.1 and the so-called purchasers have filed appeal together is also a circumstance for taken into consideration that their interest is not separate. The Courts R.S.A.No.2271 of 2009 7 below returned a finding that the purchasers were aware of marriage of harcharan Singh with defendant No.3 and the birth of the plaintiffs from his wedlock with said defendant No.3. Defendant No.3 has conceded to the mutation of the estate of deceased Harcharan Singh in favour of defendant No.1. Such concession is against the interest of minor plaintiffs and without the permission of the Court, therefore, not relevant and binding on the plaintiffs. Even otherwise, concession in mutation proceedings by the mother of the plaintiffs, who were minors cannot be used against the plaintiffs in civil suit relating to inheritance. The findings recorded by the Courts below, are the findings of fact on the basis of appreciation of evidence. Such findings do not give rise to any substantial question of law for consideration by this Court in second appeal. Dismissed. July 20,2009 (HEMANT GUPTA) Vimal JUDGE