Major Singh vs Sher Singh and Others

L.N. Mittal, J.—Major Singh plaintiff, having remained unsuccessful in both the courts below, has approached this Court by way of instant second appeal.

The plaintiff alleged that he is owner in possession of 5/9 share of the land described in plaint and mutation No. 1832 was wrongly sanctioned in favour of Tajo (predecessor of defendants No. 1 to 4) and Biro (defendant No. 5) and the said mutation is illegal and null and void. The plaintiff also sought permanent injunction restraining the defendants from alienating the suit land in any manner and from interfering in plaintiff''s possession thereof.

Plaintiff alleged that Gurdev Singh, who was previously owner of the suit land, executed a registered Will dated 04.09.1986 bequeathing the suit land in favour of the plaintiff and after the death of Gurdev Singh, plaintiff is owner in possession of the suit land. The plaintiff had rendered services to Gurdev Singh, who, in lieu of the services rendered, executed the Will in favour of the plaintiff.

Defendants No. 1 to 4 contested the suit and inter alia pleaded that inheritance mutation of Gurdev Singh has been rightly sanctioned in favour of Tajo and Biro. The alleged Will pleaded by the plaintiff is null and void and is forged and fabricated document prepared after the death of Gurdev Singh.

Learned Civil Judge (Junior Division), Nabha, vide judgment and decree dated 03.12.2007, dismissed the suit of the plaintiff as he failed to prove the alleged Will in his favour. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Patiala, vide judgment and decree dated 13.10.2009. Feeling aggrieved, the plaintiff has preferred the instant second appeal.

I have heard learned Counsel for the appellant and perused the case file.

The plaintiff has not led any evidence whatsoever to depict that the alleged Will was signed or thumb marked by testator Gurdev Singh. Unfortunate for the plaintiff that both attesting witnesses of the Will have since died. The plaintiff examined sons of both the attesting witnesses of the Will as witnesses in the Court. However, son of Arjan Singh - marginal witness of the Will, did not even identify the signatures of Arjan Singh on the Will. This witness admitted that he had never seen the Will in question. Similarly, son of other marginal witness Malkiat Singh stated that he had also never seen the Will in question. Consequently, this witness also did not identify the signatures or thumb impressions of his father as attesting witness of the Will on the Will in question. In the affidavit of examination- in-chief of this witness, it was mentioned that he had seen the Will in question, but in cross-examination, the witness categorically stated that he had not affirmed this fact in his affidavit. The witness stated that one Will was executed by Joginder Singh (father of plaintiff ?), but the Will in question, on which the plaintiff has based his claim, was allegedly executed by Gurdev Singh and not by Joginder Singh.

Learned Counsel for the appellant emphatically contended that scribe of the Will has been examined as witness and had deposed that the Will was read over and explained to the testator and the witnesses, who have signed/thumb marked the same. However, concededly, the scribe did not know the testator personally. Consequently, from the testimony of the scribe, it cannot be said that it was Gurdev Singh testator and not anybody else, who has signed the Will as testator.

From the aforesaid, it emerges that practically, there is no evidence to establish that the Will in question was executed or signed or thumb marked by Gurdev Singh. Learned Counsel for the appellant contended that if attesting witnesses of the Will are not available, the Will can be proved by other evidence, as observed by a Division Bench of this Court in the case of Babu Singh and Ors. v. Ram Sahai @ Ram Singh reported as 2006 (2) R.C.R. (Civil) 140.

However, this proposition of law does not help the appellant in the instant case because it was laid down in the aforesaid judgment that the Will can be proved by producing proof that attestation of attesting witness has been in his handwriting and that signature of the testator is also in his own handwriting. In the instant case, however, there is no evidence to prove that the attestation is in the handwriting or under the signatures or thumb impressions of any of the attesting witnesses nor there is evidence that there are signatures or thumb impressions of testator himself. Learned Counsel for the appellant contended that the Will has been thumb marked by the testator. However, the plaintiff did not lead any evidence to depict that alleged thumb impressions are of Gurdev Singh. The appellant could very well examine some finger print expert to compare the said alleged thumb impressions of Gurdev Singh with some other standard or admitted thumb impressions of Gurdev Singh, but no such evidence has either been adduced by plaintiff-appellant.

For the reasons aforesaid, it becomes manifest that the plaintiff has miserably failed to prove that the Will in question was executed by Gurdev Singh in favour of the plaintiff. Concurrent finding by the courts below against the appellant on issue No. 5, therefore, does not suffer from any infirmity. The said finding is based on proper appreciation of evidence and cannot be said to be perverse or illegal in any manner. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed in limine.