The plaintiff cannot selectively claim one property as Joint Hindu Family Coparcenary property while admitting receipt of other properties, and the attestation of a Will is valid even if the sequence of signatures by the testator and witnesses is not in accordance with Section 63(c) of the Succession Act, 1925.

JUDGMENT

Anil Kshetarpal, J. - Plaintiff-appellant is in the regular second appeal against the concurrent findings of fact arrived at by both the courts below, dismissing the suit filed by him for declaration that the residential property is a Joint Hindu Family Coparcenary Property and therefore, he has share in the same by birth, consequently the Will executed by his father bequeathing the property in favour of his wife (mother of the plaintiff) dated 08.03.1976 is illegal and not binding on the rights of the plaintiff.

2. In the considered view of this court, following substantial questions of law arise for consideration:-

(i) Whether after division of the property and plaintiff having got his share, the Joint Hindu Family Coparcenary still continues and whether the plaintiff can select one property and claim the same to be Joint Hindu Family Coparcenary while remaining has already been either sold or distributed amongst the family members?

(ii) Whether a particular form of attestation of the registered Will is required and it is mandatory that the testator must sign first of all even in a situation when all the witnesses and the testator are present at one point of time?

3. Gurdas Singh was common ancestor of the parties, who died in the year 1935-36 leaving behind his son Kuldeep Singh. Admittedly, Kuldeep Singh or Sodhi Kuldeep Singh was a big land owner owning agricultural land in various villages and various residential houses (Havelies). It is admitted case of the plaintiff that he was given 10 to 12 acres of land and a Haveli. Sodhi Kuldeep Singh died in the year 1976. He had left behind a bequest with regard to the property in dispute i.e a residential house in favour of his wife Surinder Kaur dated 08.03.1976. On the basis of the aforesaid registered bequest, the property was mutated in favour of the widow Surinder Kaur, who thereafter executed 3 documents giving the property to her grand sons, one is gift deed dated 19.07.2001, Second Will, which of course has not been proved dated 05.06.1996 and a lease deed dated 24.07.1995. The gift deed is in favour of Tikka Amarjit Singh, her son and grand daughters from Tikka Amarjit Singh. Whereas the Will is in favour of Tikka Amarjit Singh and the lease deed is also in favour of Tikka Amarjit Singh.

4. Plaintiff as noticed above, filed a suit after a period of 25 years claiming that the Will executed by late Sh. Kuldeep Singh, his father, is not binding on his rights.

5. Both the courts after examining the evidence have dismissed the suit filed by the plaintiff.

6. This court has heard learned counsel for the parties at length and with their able assistance gone through the judgments passed by the courts below and the record.

7. Learned counsel appearing for the appellant has basically raised two arguments; (1) that the ancestral nature of the property in dispute is admitted by the witnesses which have been examined by the defendants. He while building his argument thereon has submitted that the admission of the plaintiff with regard to receipt of 10-12 acres of land from Sodhi Kuldeep Singh and a Haveli does not result in severance of status of the plaintiff and Joint Hindu Family Coparcenary continues; (2) He while drawing attention of the court to the statement of the attesting witness Tarlochan Singh, DW5 has stated that Tarlochan Singh as well as other witnesses had signed the Will before the executant Kuldeep Singh had signed the Will. Hence, he submitted that the Will has not been attested in accordance with Section 63 (c) of the Succession Act, 1925. While elaborating, he submitted that the signatures of the testator are required to be attested by the attesting witnesses and once admittedly they had signed before the signatures were affixed by the testator, therefore, the Will is not proved to have been executed in accordance with Section 63(c) of the Succession Act, 1925. He has further submitted that there is a semi-colon which divides/separates two parts of Section 63(c