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2018 Supreme(P&H) 2196
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Amit Rawal
RSA No.1281 of 1991
Mohinder Singh
v.
Jagga Singh alias Jaggu Singh & Ors.
{Decided on 12/02/2018}
For the Appellant:Mr. Anupam Gupta, Senior Advocate with Ms. Harmanjeet Kaur, Advocate.
For the Respondent(s):Mr. Ashok Jindal, Advocate.
Will – Attesting Witness explicitly missed in their testimony that they had appended the signatures/thumb impressions on the direction of the testator—Will discarded.
Headnote:(A) Succession Act, 1925, S.63 – Will – Attesting Witness – There is a requirement of law that witnesses have to append the signatures/thumb impressions on the direction of the testator – In present case, such a clause was explicitly missing from testimony of attesting witness – Will discarded as there was absence of compliance of provision of S.63(c) of 1925 Act. (Para 20)
(B) Succession Act, 1925, S.63 – Will – Attesting Witness—They explicitly missed in their testimony that they had appended the signatures/thumb impressions on the direction of the testator – In the absence of compliance of provisions of S.63(c) of 1925, Act, the Will has to be discarded. (Para 20)
(C) Succession Act, 1925, S.63 – Will – Suspicious Circumstances – Will was scribed in Tehsil complex, wherein admittedly, few other deed writers have seat – Scribe of present Will was not a regular deed writer and register has not been properly maintained by him in the required manner – No explanation has came forward as what was the reason for filling the blank paper, much less register was not page marked – No reason surfaced as to why testator did not opt for registration of Will – Will discarded. (Para 17)
Mr. Amit Rawal, J.:- The present appeal is at the instance of appellant-defendant no.1, who was not able to defend the suit filed by his brother seeking joint possession of 3/9th share as owner of the land described below:-
“khewat no.4, khitonai no.9, khasra no.15(8-0), 16(11-15), 65 (8-0), 80/1(4-0), khatoni 10 khasra no.14 min (5-10) khatoni 11 khasra no.14 min (2-10), total measuring 39K-15mls. situated in the area of V. Fateh Garh Nihal, Tehsil Phillaur according to the jamabandi of the year 1982-83 with all rights appurtenant thereto, with rights in Taur Chah, Arr Chah Mahal Chah, land revenue Rs.6/-.”
2. The suit had been decreed by the trial Court and the appeal preferred before the Lower Appellate Court was dismissed.
3. It would be necessary to give few facts emanating from pleadings of the parties.
4. Plaintiffs - Jagga Singh alias Jaggu son of Hakim Singh, Sucha Singh son of Hakin and Mayan daughter of Hakim instituted a suit against the appellant-defendants -Mohinder Singh, their brothers Chinda, Makhan Singh, Biddo-daughter, Naino-widow claiming the share in the aforementioned suit property on the premise that Hakim Singh son of Sardara Singh was owner in possession of the land. In December 1986, he died leaving behind the plaintiffs and defendants as his legal heirs. Defendants no.6 to 13 were the legal heirs of one of the sons of Hakim, namely Gajjan Singh, who died during the life time of Hakim Singh. However, defendants no.1 and 2 set up a Will dated 21.07.1986 executed by Hakim Singh in their favour and also got sanctioned mutation bearing no.50, which was sought to be declared illegal, null and void.
5. Defendants no.1, 2, 3 and 5 filed joint written statement challenging the locus standi of the plaintiffs and admitted that the suit land was owned by Hakim Singh but by virtue of valid Will bequeathed the entire property in their favour. Even the mutation proceedings were also decided by the revenue Court in their favour, vide order dated 12.01.1987. The Will was executed owing to the fact that he was served by his three sons i.e. defendants no.1 to 3.
6. Since the parties were at variance, the trial Court framed the following issues:-
“1. Whether Hakim Singh deceased executed a Will dated 21.07.1986. If so, its effect? OPD
2. Ifissue no.1 is not proved, whether plaintiffs are entitled to the land in dispute to the extend of3/9 share as natural heirs of the deceased. OPP
3. Whether the plaintiffs have got no locus standi to file the present suit? OPD
4. Whether the suit as framed is not maintainable? OPD
5. Relief.”
7. Since the onus to prove the Will was upon the defendants, they examined DW1-Jagtar Singh, DW2- Shangara Singh, attesting witnesses of Will Ex.D1, DW3-Jasbir Singh, scribe of Will, Ex.D1 and Mohinder Singh appeared as DW4.
8. The plaintiffs appeared as PW5 and examined PW2-Sham Sunder, PW3-Milkha Singh and PW4, Inspector Balwant Singh, Finger Print Expert, Finger Print Bureau, Phillaur and closed their evidence.
9. Both the Courts below on the pre-ponderence of evidence decreed the suit. It is in this backdrop of the matter, the present appeal has been filed at the instance of the appellant.
10. Mr. Anupam Gupta, learned Senior counsel assisted by Ms. Harmanjeet Kaur, Advocate appearing on behalf of the appellant submitted that both the Courts below have committed illegality and perversity in decreeing the suit by holding that the Will did not give any reason for excluding the natural heir, whereas, on close scrutiny of the Will, it explicitly referred to the services rendered by the appellant, much less financial assistance.
11. The execution of the Will, was proved by complying with the provisions of Section 68 of Indian Evidence Act. It is not necessary that Will has to be scribed by a regular deed writer. Law does not prescribe for registration of the Will. The Courts below erred in not accepting the testimony of PW4, which was totally demolished in cross-examination. Both the att
