IMPORTANT POINT
Will - ingredients.

JUDGMENT :

ANIL R. DAVE, J.

1. Being aggrieved by the Judgment delivered in Civil Regular Second Appeal No. 3937 of 2005 and Cross Objection No. 9-C of 2005 dated 21st May, 2010 by the High Court of Punjab & Haryana at Chandigarh, these appeals have been filed by original defendant No.1.

2. The facts giving rise to the appeals in a nutshell are as under:

Rao Gajraj Singh and his wife Sumitra Devi were occupiers of the suit property. The property appears to have been constructed somewhere in 1935 and as per the municipal record, it belonged to Rao Gajraj Singh. A document was executed by Rao Gajraj Singh to the effect that upon death of himself or his wife, the suit property would be inherited by the survivor. The said writing was attested by Rao Devender Singh, the son of Rao Gajraj Singh’s real sister. Rao Gajraj Singh expired on 29th March, 1981 and thereafter Sumitra Devi, who had eight children, started residing at Ranchi with the appellant. Somewhere in 1980s, Sumitra Devi got constructed some shops in the suit premises and the said shops were given on rent. On 1st June, 1989, Sumitra Devi executed a Will whereby she bequeathed the suit property to one of her sons, namely, Narinder Singh Rao

(the present appellant and original defendant No.1) and she expired on 6th June, 1989.

3. After the death of Sumitra Devi, her four children, one of them being the present respondent No.1, filed a suit for declaration claiming their right in the suit property. Subsequently, the plaint was amended so as to make it a suit for partition. According to the case of the said children, the Will was not genuine and therefore, the said Will could not have been acted upon and as Sumitra Devi was survived by eight children, the suit property would be inherited by all the children. Thus, each child had 1/8th share in the suit property.

4. Even after death of Rao Gajraj Singh, the suit property continued to remain in his name because nobody had got the property mutated in the names of his heirs/legal representatives after his death.

5. The said suit was dismissed and therefore, the original plaintiffs, along with others, preferred an appeal. After hearing the learned advocates and considering the facts of the case, the lower appellate court dismissed the said appeal though allowed the appeal on the question of court fee.

6. Being aggrieved by the judgment delivered by the lower appellate court, original plaintiff No.1 filed a second appeal, being Civil Regular Second Appeal No. 3937 of 2005. On the issue with regard to court fee, cross objection was filed by the present appellant. The said appeal was partly allowed whereas the cross objection was dismissed on 25th May, 2010 and being aggrieved by the judgment delivered in the said appeal, the present appeal has been filed by the appellant, who is original defendant no.1.

7. It is pertinent to note as to how the High Court has decided the Second Appeal and for that purpose let us look at the findings, which are as under:

The ultimate findings arrived at by the court below are to the effect that the writing executed by Rao Gajraj Singh, which stated that upon death of himself or his wife, the suit property would be inherited by the survivor, was neither in the nature of a Will nor in the nature of transfer of the property because the said writing was neither registered as required under the provisions of the Indian Registration Act, 1908 nor was attested by two witnesses as it should have been done, had it been a Will. Thus, the writing executed by Rao Gajraj Singh, in the eyes of law, was only a piece of paper, having no legal effect. Factually also, the said writing was not a Will because it was not attested by two attesting witnesses as is required to be done for execution of a valid Will. It is also a fact that the said writing had not been registered and by virtue of the said writing either complete ownership or share of Rao Gajraj Singh was not transferred to Sumitra Devi, thus, the High Court in its impu