IMPORTANT POINTS
Finding of fact by courts below cannot be interfered in second appeal.
For leading secondary evidence of existence, condition, or contents of a document including the cases where the original has been destroyed or lost an application is not required.
All objections should be decided at the final stage.
Execution of Will in favour of one son to the exclusion of all other natural heirs is not a suspicious circumstance.

JUDGMENT :

HEMANT GUPTA, J.

1. The challenge in the present appeal is to an order passed by the High Court of Punjab and Haryana on 27th March, 2014 whereby the concurrent findings of fact recorded by both the courts below were set aside and the suit filed by the respondent-plaintiff was decreed.

2. The High Court has framed the following two substantial questions of law:

“1. Whether the Will dated 30.4.1980 Ex.D-3 was surrounded by suspicious circumstances and due execution thereof was also not proved, in accordance with the requirements of Section 63 of the Succession Act.

2. Whether the learned courts below have completely misread, misconstrued and misinterpreted the evidence available on record, particularly the Will Ex.D-3, because of which the impugned judgments cannot be sustained.”

3. The admitted facts are that one Misri was the grandfather of the Plaintiff-Sheo Ram and defendant No. 5-Sohan Lal and defendant Nos. 7-9 were his granddaughters. Chandu Ram was the father of the plaintiff and defendant Nos. 5, 7-9 and the husband of Chand Kaur had inherited the suit land from his father, Misri.

4. The plaintiff filed a suit for declaration that he along with his mother, Chand Kaur and his sisters, defendants Nos. 7-9, were the owners and in possession of equal shares of the suit land measuring 489 kanals 4 marlas. He asserted that he belonged to the Jat community and was governed by Punjab Customary Law. Further, that his brother, defendant No. 5, got a Will dated 30th April, 1980 executed in favour of his sons, from Chandu Ram. Such a Will contravened Jat Customary Law and was the result of fraud and misrepresentation. Defendant No. 5 and his sons, the beneficiaries under the Will filed a common written statement and asserted that the custom had been abrogated after passing of the Hindu Succession Act, 1956 [for short ‘Act’] and that Chandu Ram had separated all his sons during his life time and given sufficient amount to his daughters, defendant Nos. 7-9, in the shape of dowry and other ceremonial and customary festivities. In this regard, sufficient land had also been given to the plaintiff, therefore, there was no Joint Hindu Family. The Will had been executed by Chandu Ram out of his natural love and affection and was without any inducement or fraud or misrepresentation.

5. The learned trial court framed as many as 12 issues but for the purpose of deciding the present appeal, Issue Nos. 1, 3 and 7 are relevant which read as under:

“1. Whether the plaintiff and the proforma defendants are the owners and in possession of the property in dispute?

xxx xxx xxx

3. Whether the Will dated 30.4.1980 was validly executed by Chandu Ram in favour of defendants No. 1 to 4?

xxx xxx xxx

7. Whether deceased Chandu had separated all his sons during his life time and had given sufficient amount to his daughters in the shape of dowry etc. and land to his sons as alleged in preliminary objection no. 5 of the written statement? If so to what effect?”

6. In respect of Issue No. 7 relating to the partition of the property by Chandu Ram, the defendants relied upon a judgment and decree in a suit filed by the Plaintiff-Sheo Ram and defendant No. 5, Sohan Lal against their father Chandu Ram. Chandu Ram admitted the fact of partition and that a judgment (Ex.D-21) and decree (Ex.D-22) to this effect was passed. Thereafter, a mutation was also sanctioned. Chandu Ram had filed a suit for permanent injunction to the effect that the property in dispute fell to his share while the defendant (present plaintiff) was given 50 acres of land situated in Village Gawar, 15½ acres of land in Village Bairan, 10 acres of land in Village Hariawas and 6 acres of land in Village Baliali, totaling 81½ acres. It was also pleaded that the defendant therein sold 50 acres of land of Village Gawar and 15½ acres of land of Village Bairan after this partition. The defendant therein asserted that the properties mentioned above were purchased by him from his exclusive funds and, th