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2013 Supreme(P&H) 1015
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Mahavir S. Chauhan
R.S.A. No.1558 of 1989
Mohinder Singh & Ors.
v.
Lachhman Singh & Ors.
{Decided on 09/12/2013}
For the Appellants:Mr. G.S.Punia, Advocate.
For the Respondents:Mr. Parveen Chauhan, Advocate.
Headnote:(A) Succession Act, 1963, S.63--Will--Proof of Execution--Held; Insistence that some one from office of Sub-Registrar ought to have been examined to bring on record to prove execution of will is totally uncalled for--Certificate of the Sub-Registrar in itself is a relevant piece of evidence to prove due execution of said will. (Para 15 to 18)
(B) Succession Act, 1963, S.63--Will--Proof of Execution--Scribing of will-Held; there is no law that a Will must be scribed by a regular Deed Writer or that it cannot be scribed by an Advocate--For execution of a Will no procedure has been prescribed in law--In certain circumstances, a Will can be made even orally--There is no prescribed format. (Para 19)
(C) Succession Act, 1963, S.63--Will--Attestation of--Held; It is not the requirement of law the attesting witness of the Will must be from the village where the testator resides or where the subject matter of the Will is situate. (Para 20)
(D) Succession Act, 1963, S.63--Will--Proof of Execution--Held; Non-mentioning of previous Will in the new will cannot be said to be such a suspicious circumstance as to render the new will unacceptable--Especially when the beneficiary of previous Will was in continuous litigation with the testator. (Para 22)
(E) Civil Procedure Code, 1908, O.6 R.1--Pleading--Relief not founded in the pleadings should not be granted. (Para 23)
(F) Civil Procedure Code, 1908, O.6 R.1--Pleading--The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. (Para 23)
Mr. Mahavir S. Chauhan, J.:- Civil Suit No.176 of 26.07.1982 was brought by Lachhman Singh and Balwinder Singh (hereinafter referred to as ‘the plaintiffs’) against Natha Singh, Mohinder Singh, Malkiat Singh and Darshan Singh (hereinafter referred to as ‘the defendants’) for declaration to the effect that they were owners and in possession of land comprised in khewat No. 126/131, khatauni No. 298, 299, khasra Nos. 78/23/1, 23/2-24, 85/3-4-7-8-9/1-13, 78/14/2-17-18, per Jamabandi for the year 1976-77 (for short, land in dispute) situated at village Nangal Tehsil Moga; and for perpetual prohibitory injunction to restrain the defendants from interfering in their lawful and peaceful possession over the land in dispute.
2. Case of the plaintiffs, as spelt out in the body of the plaint, was that the land in dispute was owned by Bakhtawar Singh son of Arjan Singh, who died leaving behind the plaintiffs as his only legal heirs; and they were in possession of the said land even during the life time of Bakhtawar Singh. In fact, Bakhtawar Singh used to live and reside with the plaintiffs, who, happened to be his grandsons and would look after and serve him. Bakhtawar Singh executed a registered Will dated 26.06.1978 in their favour in lieu of the services rendered by them towards him. After Bakhtawar Singh’s death, they became owners of the land in dispute but the defendants got mutation of inheritance of Bakhtawar Singh sanctioned in their favour on the basis of a Will dated 06.06.1980, which according to the plaintiffs, was not a validly executed Will and, thus, order passed by the revenue authorities was illegal as Bakhtawar Singh never executed any such Will on 06.06.1980 in favour of the defendants. That Will dated 06.06.1980, according to the plaintiffs, was forged and under the garb of order of mutation, defendants were threatening to dispossess the plaintiffs from the land in dispute and to alienate it.
3. Plaintiffs’ suit was contested by the defendants by filing a written statement, wherein it was stated that plaintiff Lachhman Singh had filed a civil suit against Bakhtawar Singh seeking injunction to restrain said Bakhtawar Singh from interfering in his possession over the land in dispute. The suit, however, was dismissed on 03.04.1982. Plaintiff Lachhman Singh then filed another civil suit which too was dismissed on 03.06.1982. The plaintiffs were neither owners nor in possession of the land in dispute and Bakhtawar Singh did not execute the Will dated 26.06.1978 in favour of the plaintiffs. The Will propounded by the plaintiffs was forged and fraudulent and the plaintiffs were not related to Bakhtawar Singh, who was unmarried and used to reside with his nephews (the defendants) in village Jandwala Bhime Shah, Tehsil Fazilka, who were rendering services to him. He died in their house. They performed his last rites and before his death, said Bakhtawar Singh had executed a registered Will dated 06.06.1980 in their favour and, even otherwise, they were also natural heirs of said Bakhtawar Singh. Mutation was rightly sanctioned in their favour.
4. From the pleadings of the parties, court of learned Additional Senior Sub Judge, Moga (hereinafter referred to as ‘the trial Court’) identified following issues:-
“1. Whether Bakhtawar Singh executed a Will in favour of the plaintiffs on 26.6.1978? OPP.
2. Whether the plaintiffs are in possession of the suit property? OPP.
3. Whether Bakhtawar Singh executed a Will in favour of the defendants on 6.6.1980? OPD.
4. What is the effect of previous litigation? OPD.
5. Relief.”
5. After conclusion of evidence of both the sides, learned trial Court heard the parties, appraised the evidence, and held both the Wills, i.e., Will dated 26.06.1978 (Exhibit P-1) and 06.06.1980 (Exhibit D-2) to be validly executed and to be genuine Wills and that the Will dated 26.06.1978 stood revoked on execution of Will dated 06.06.1980 (Exhibit D-2). However, the learned trial Court found the plaintiffs
