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2017 Supreme(P&H) 1560
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ANIL KSHETARPAL, J.
Phool Singh and others – Appellants
Versus
Smt. Santosh and others – Respondents
RSA No.1326 of 2011 (O&M)
Decided On : 26-09-2017
For the Appellant :Mr. Rajinder Goyal, Advocate
For the Respondent:Mr. Aashish Yadav, Advocate
Will--Scribe of will--Will was scribed by grandson of testator who had no personal interest--Will held to be valid.
Headnote:(A) Succession Act, 1963, S.63--Will--Scribe of will--There is no requirement that the Will must be scribed by a regular deed writer--In the present case, the Will was scribed by grandson of testator who had no personal interest--Will held to be valid. (Para 12)
(B) Succession Act, 1963, S.63--Will--Registration of--Will is not required to be compulsorily registered--The registration of the Will is optional--In the present case, the testator did not get the Will registered--However, this reason itself is not sufficient to hold that the Will is doubtful. (Para 13)
(C) Succession Act, 1963, S.63--Will-Spacing between lines--Where the Will is hand written the spacing between the lines cannot be equal--Therefore, it cannot be said that the Will is doubtful because there is small difference in the space between the lines on both the pages. (Para 15)
(D) Succession Act, 1963, S.63--Will--Placement of Thumb impression--Hand written will running into two pages--Both the pages of the Will are duly thumb marked by the testator-- On the first page, the thumb impression is at the end of the page, whereas on the second page, the thumb impression is where the narration of Will comes to an end--The thumb impressions cannot be said to be at inappropriate place--On the second page, the narration of the Will goes upto half of the page and thereafter immediately thumb impressions of the testator is found to be affixed--Will held to be valid. (Para 15)
ANIL KSHETARPAL, J.
1. Plaintiffs are in regular second appeal against concurrent findings of fact arrived at by the Courts below.
2. The dispute in the present case is with respect to estate of one late Sh. Banwari Lal, who died on 06.09.2003. Plaintiffs are 8 sons of late Sh. Banwari Lal, whereas plaintiffs no.9 and 10 are grand sons of late Shri Banwari Lal from a pre-deceased son.
3. On the other hand, defendant no.1 is the widow of pre-deceased son of late Sh. Banwari Lal. Defendants no.2 to 13 have not chosen to contest the litigation.
4. The dispute in the present case is with regard to the validity of the alleged Will executed by late Sh. Banwari Lal, dated 05.04.2003, Ex.P1 available on the file. The Courts below have ignored the Will on the following grounds:-
(i) the Will is not scribed by a regular deed writer;
(ii) the testator if wanted to ignore the claim of Santosh, defendant no.1, wife of a pre-deceased son, he should have got the Will registered;
(iii) the testator remained alive for a period of 5 months after the date of execution of the Will but the Will was not got registered;
(iv) the attesting witnesses of the Will are residents of different village than the testator;
(v) the spacing between the lines on the first page and second page of the Will is different;
(vi) there is a ink shade on the body of the paper and placing of thumb impression is not proper and entire ridge is missing.
(vii) It is proved on the file that the plaintiffs were in litigation with late Sh. Banwari Lal and were not serving him.
5. I have heard counsel for the parties at length and with their able assistance gone through the record as well as the judgments passed by the Courts below.
6. Counsel for the appellant has submitted that the Will is proved on the file as both the attesting witnesses, namely, Rattan Singh and Zile Singh have been examined as PW1 and PW2. Zile Singh, PW2 is from the same village i.e., village Dadwana, where the testator used to live. He further submits that scribe of the Will, namely, Beer Singh has been examined as PW3. He is son of the daughter of late Sh. Banwari Lal. He has further submitted that the spacing between the lines being irregular as held by the Courts, is a factually incorrect finding. He has further submitted that both the pages of the Will are duly thumb marked by the testator. He has further submitted that there is a misreading of the statement of Santosh by the Courts below. He has submitted that Santosh had admitted in the cross-examination when she appeared in evidence that she shifted to the place of her parents against the wishes of late Sh. Banwari Lal. The thumb impressions of late Sh. Banwari Lal on the Will are admitted by her.
7. The only case set up by the defendants is that these thumb impressions were obtained after the death of late Sh. Banwari Lal. He has further submitted that the Will is a natural Will as late Sh. Banwari Lal bequeathed his property in favour of his 8 sons who were alive and 2 grand sons of a pre-deceased son. He further submits that in the Will, reason why Santosh, defendant no.1, who is widow of a pre-deceased son has been disinherited has been given as she shifted to the place of her parents against the wishes of late Sh. Banwari Lal.
8. On the other hand, learned counsel for the respondents has supported the judgments passed by the Courts below. He submits that there is a concurrent findings of fact arrived at by the Courts below. He has submitted that both the witnesses have stated in the evidence that the Will is of one page, whereas factually the Will runs into 2 pages. He has further submitted that Beer Singh, one of the attesting witnesses had submitted that late Sh. Banwari Lal had put his right thumb impression whereas it is of left thumb impression. He has further submitted that the defendants has examined Handwriting and Finger Print Expert, who has opined that the thumb impressions of late Sh. Banwari Lal are abnormally placed. He has further o
