JUDGMENT

Rajbir Sehrawat, J. (Oral)

This regular second appeal has been filed by the defendants of the original suit; challenging the concurrent judgments and decrees passed by the Trial Court and the lower Appellate Court, whereby the suit filed by the respondents/plaintiffs for declaration qua the Will dated 13.09.1994 as illegal; has been decreed; and the said Will has been held to be invalid.

2. Notice of motion.

3. On the asking of the Court, Ms. Aarushi Garg, assisting counsel of Mr. R.S.Bains, Senior Advocate, accepts notice on behalf of respondents No.1 and 2 and Ms. Malika Sobti, Advocate appearing for Mr. Rakesh Sobti, Advocate, accepts notice on behalf of respondent No.5.

4. Respective counsels have agreed to address the arguments for final disposal of the appeal. The parties are being referred to as they were described in the original suit.

5. The brief facts, as involved in the present appeal, are that the plaintiffs/respondents filed a suit challenging the Will dated 04.10.1994; allegedly executed by their father in favour of the appellants/defendants No.1 and 2, besides challenging the consequent mutation entered by the Estate Office, Chandigarh, as illegal. It was asserted by the plaintiffs that plaintiff No.1-Usha Prashar is the wife of Satkam Prashar, who died on 14.11.1997. The deceased-Satkam Prashar left behind his wife/plaintiff No.1, a daughter/plaintiff No.4 and three sons, namely, Pawan Kumar Prashar/plaintiff No.2, Dinesh Kumar Prashar/plaintiff No.3 and Rakesh Prashar/defendant No.1, who is the appellant No.1 herein. Plaintiff No.1, along with her two sons i.e. plaintiffs No.2 and 3; is residing in House No.737, Sector 22-A, Chandigarh, and the defendant No.1 is residing in House No.1030, Sector 37-B, Chandigarh, separately. The deceased-Satkam Prashar was owner of Booth No.3025 D, Sector 22-D, Chandigarh. In the month of October/November, 1993, deceased-Satkam Prashar divided his properties amongst his three sons on account of his illness. In dis-regard of the said distribution of the properties, Defendant No.1/appellant herein, claimed the General Power of Attorney dated 24.11.1993 and a Will allegedly executed by his father-Satkam Prashar. On the basis of those documents, defendant No.1 had earlier filed a suit claiming himself to be exclusive owner of Booth No.3025-D, Sector 22-D, Chandigarh. However, he had lost in the suit. Subsequently, he had filed an appeal before the lower Appellate Court. During the pendency of the said appeal, defendant No.1 claimed second Will dated 13.09.1994, which is the subject matter of the present suit as well. However, even the said appeal filed in the earlier suit was dismissed as withdrawn. When defendant No.1 started claiming the Will dated 13.09.1994, then the plaintiffs, who are the wife, one daughter and two sons of the deceased-Satkam Prashar, filed the present suit challenging the validity of that Will and the consequent action taken by the Estate Office, Chandigarh.

6. At the stage of the evidence, the parties led their respective evidence. To prove the genuineness and true execution of the Will, appellant/defendant No.1 examined the attesting witness Raghbir Singh as DW2 in examination-in-chief. However, he was not produced for cross-examination. Instead of producing the said witness before the Court for cross-examination, defendant No.1 filed an application for issuing commission for recording of the cross-examination of the said witness. However, in the said attempt, defendant No.1 had lost right upon the High Court. Thereafter, defendant No.1 moved another application before the Trial Court for ex