Baljit Kaur vs Ajaib Singh

Paramjit Singh Patwalia, J.—The suit out of which this regular second appeal arises was filed by appellants for declaration that they are owners of suit land in equal shares, fully detailed in head note of plaint, on the basis of registered Will dated 18.03.1985 executed by Chanan Singh in favour of the plaintiffs and for setting aside mutation No. 4017 in respect of inheritance of Chanan Singh, having been sanctioned on false and forged Will dated 07.04.1998. The Court of, first instance dismissed, the suit vide judgment and decree dated 19.11.2009. Feeling aggrieved, the plaintiffs preferred an appeal which has been dismissed by lower Appellate Court, vide judgment and decree dated 24.12.2011, whereby findings of trial Court on issues No. 1 to 6 have been upheld, however, findings on issue No. 7 have been set aside and Will dated 07.04.1998 propounded by respondents No. 1 to 3 has been declared as illegal, null and void.

The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. However, the brief facts relevant for disposal of this regular second appeal are that Chanan Singh son of Hira Singh, was owner of land measuring 15 kanals 12 marlas being 1/2 share of total land measuring 31 kanals 4 marlas, fully detailed in the head-note of plaint, situated in village Brahmpur, Tehsil Raikot, District Ludhiana. Chanan Singh, who was unmarried and issueless, was the real paternal uncle of the plaintiffs died on 24.08.1998. It is the case of plaintiffs/appellants that prior to his death, Chanan Singh executed Will dated 18.03.1985 bequeathing his property in favour of the plaintiffs in his sound disposing mind in lieu of services provided to him by the plaintiffs. Defendants No. 1 to 3 never rendered any kind of service to Chanan Singh. The plaintiffs also got Chanan Singh treated, who was suffering from Cancer. After the death of Chanan Singh, when the appellants approached the revenue authorities for mutation of inheritance of Chanan Singh in their favour on the basis of registered Will dated 18.03.1985, they came to know that mutation of inheritance of Chanan Singh has already been sanctioned in favour of defendants No. 1 to 3 vide mutation No. 4017 on the basis of Will dated 07.04.1998. The Will propounded by defendants No. 1 to 3 is forged, illegal and a false document. Accordingly, they filed a suit for declaration.

Upon notice, defendants No. 1 to 3 put in appearance and resisted the suit by taking preliminary objections that suit is not maintainable; that the plaintiffs are estopped from filing the suit by their own act and conduct; that the plaintiffs have no locus standi to file the suit and that alleged Will dated 18.03.1985 propounded by the plaintiffs is forged, fictitious and fabricated document. On merits, the relationship of plaintiffs with defendants No. 1 to 3 inter se and with that of Chanan Singh had been admitted. It was pleaded that Chanan Singh in his sound and disposing mind and in lieu of services rendered to him by defendants No. 1 to 3 executed registered Will dated 07.04.1998 in their favour. The alleged Will dated 18.03.1985 was surrounded by suspicious circumstances.

None appeared on behalf of defendants No. 4 to 7 to contest the suit and they were proceeded against ex parte by the trial Court.

On the basis of pleadings of parties, the Court of first instance framed the following issues:

"1. Whether Chanan Singh since deceased executed a valid and registered Will dated 18.03.1985 in favour of plaintiffs? OPP

Whether plaintiffs are entitled for declaration as prayed for? OPP

Whether the alleged Will dated 18.03.1985 propounded by plaintiffs is forged, fictitious and fabricated document? OPD

Whether the plaintiffs have got no locus standi to file the present suit? OPD

Whether the plaintiffs are estopped by their act and conduct to file the present suit? OPD

Whether the suit is not legally maintainable in the present form? OPD

Whether Chanan Singh since deceased executed valid Will dated 07.04.1998 in favour of defendants No. 1 to 3? OPD

Relief."

After appreciating the evidence, the Court of first instance dismissed the suit, vide judgment and decree dated 19.11.2009. Feeling aggrieved, the plaintiffs preferred an appeal which has been dismissed, however, the findings of trial Court on issue No. 7 have been reversed, vide judgment and decree dated 24.12.2011. Feeling aggrieved, the plaintiffs have filed this instant regular second appeal.

I have heard learned counsel for the appellants and perused the record.

Learned counsel for the appellants has vehemently contended that PW Anil Kumar, handwriting expert and PW 3 Lachman Singh, scribe of the Will Ex. P-1 were examined by the appellants to prove the Will propounded by them, however, their evidence had not been rightly considered by the courts below. Learned counsel has further contended that main law points arise in this regular second appeal for consideration, are mentioned in the grounds of appeal and read as under:

(i) Whether the judgments and decrees passed by both the learned courts below are illegal and perverse and against the evidence brought on record?

(ii) Whether the findings of the learned courts below with regard to the Will dated 18.03.1985 are illegal and perverse and against the evidence brought on record?

(iii) Whether where the attesting witness of the Will become hostile, then the Will can be proved by other evidence?

I have considered the contentions of learned counsel for the appellants.

Both the courts below have recorded findings of fact with regard to respective Wills. The execution of a Will is to be proved by way of categorical evidence of the marginal witness. Admittedly, PW 1 (re-numbered) Balwant Singh and PW 2 Darshan Singh, marginal witnesses of the Will dated 18.03.1985 Ex. P-1 propounded by the plaintiffs, did not support the plaintiffs qua the fact of execution of the said Will and turned hostile. Admittedly, PW 3 Lachhman Singh, scribe of the Will Ex. P-1 supported the case of the plaintiffs, however, it is settled proposition of law that scribe of a Will cannot be considered as marginal witness. The science of handwriting and finger-print comparison is not a perfect science and cannot be sole basis regarding sanctity of the Will, when the marginal witnesses had appeared in court and did not support the Will. Even no substantial question of law has been framed, rather in the grounds of appeal only law points involved are mentioned. These are general in nature and cannot be said to be questions of law, muchless substantial questions of law. The concurrent findings of fact have been recorded by both the Courts below. The said findings are not shown to be perverse or illegal or based on misreading, non-reading or misappreciation of the material evidence on record. Consequently, the said findings of fact do not warrant interference in regular second appeal. No question of law, much less substantial question of law, arises for adjudication in this second appeal.

No other point has been urged.

Dismissed in limine. No order as to costs.