The validity of a Will is compromised if it is executed under suspicious circumstances, including lack of witness credibility and unexplained delays in disclosure.

JUDGMENT

Sanjay Vashisth, J. (Oral)

CM-5364-C-2019

(i) Present application has been filed under section 151 CPC for seeking condonation of delay of 15 days in re-filing the appeal.

(ii) For the reasons enumerated in the application, the same is allowed and the delay of 15 days in re-filing the present appeal is hereby condoned.

(iii) Application stands disposed of.

RSA-1976 of 2019(O&M)

Present regular second appeal has been filed by the appellant/plaintiff against the concurrent findings of dismissal of civil suit.

2. Plaintiff-Jaswant Singh (deceased) filed a civil suit for seeking possession of the first floor of house No.42 situated at Bazar No.6, Ferozepur Cantt. against the defendant-Kashmir Singh, who is his real brother. The plaintiff has pleaded that his father-Narain Singh, used to live with him and during his lifetime he used to take care of his well-being. Due to said reason, Narain Singh had executed a Will dated 02.12.1986 (Ex.P1), which was registered on 18.12.2014 in favour of the plaintiff and on the basis of the said Will, the plaintiff is claiming his title over the property and possession by way of the present civil suit.

3. In the written statement filed by the defendant, apart from the preliminary objections, it has been stated that plaintiff-Jaswant Singh had previously filed a suit for permanent injunction, and in the proceedings of that suit, nothing was mentioned about the said Will, therefore, Jaswant Singh has lost his right to file the present suit on the basis of the said Will, which was in existence at the time of the filing of the suit for permanent injunction. Further pleaded that Narain Singh himself, who was related as father of the plaintiff and defendant had given possession of the first floor to the defendant and since then he has been residing there. Also pleaded that the Will is a suspicious document because same was kept in the dark before its registration i.e. after 28 years and there is no explanation for not disclosing anywhere the factum of execution of the said Will by the father of the parties.

4. Learned Trial Court considered all the aspects and found that the Will relied upon by the plaintiff has failed to remove the suspicious circumstances regarding the authenticity of the Will in question. For the sake of convenience, relevant findings recorded by learned trial Court in paragraph No.12 under issue No.1 is reproduced here under:

'1. Even in the present case the perusal of the Will in question reveals that the A signatures are shaky. There is no mention of any of the legal heirs in the same. No plausible explanation of such ouster of legal heirs has been mentioned in the Will. The Will has not seen the light of the day for as long as 28 years. It has come on record that the parties to the suit were having a previous litigation in which there was no mention of the Will. It has also come on record that the parties to suit were also involved in proceedings under section 107/151 Cr.P.C and even in same there was no mention of the Will. It has also come on record in testimony of DW2 that there were various compromise meetings held between the parties but in none of them had Jaswant Singh mentioned anything about the Will. All these facts coupled with the fact the scribe and the witnesses were unknown to each other and barely knew testator cast a suspicion on the genuineness of the Will. This is further guided by the law laid down in the case of Balathandayutham and another v. Ezhilarasan 2010(2) RCR (Civil) 821 in which the hon'ble Apex Court has held that it would;d be a suspicious circumstance where attestors of the Will were strangers to the family. Moreover, the scribe was a minor at the time of scribing the Will. The scribe was not a regular deed writer and had never earlier scribed any Will. Eve