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2003 DIGILAW 951 (PNJ)

Gunwanti @ Hardei v. Nand Kaur

2003-07-16

ASHUTOSH MOHUNTA

body2003
Judgment Ashutosh Mohunta, J. 1. Smt. Gunwati has challenged the judgments and decrees passed by both the courts below vide which her suit for declaration and possession of half share of the property left behind by her deceased maternal grandfather Chandgi Ram, was dismissed. 2. Chandgi Ram had two daughters, namely, Nand Kaur and Chhan Kaur. Chhan Kaur was married to Maman Singh. Smt. Gunwati was allegedly born to Chhan Kaur from Maman Singh. Chhan Kaur died immediately after her marriage with Maman Singh, leaving behind her only daughter Gunwati. Chandgi Ram died on August 8, 1977. Before his death he executed a registered will in favour of his daughter Smt. Nand Kaur. Mutation of the entire property left by Chandgi Ram was entered in favour of Smt. Nand Kaur on the basis of the will allegedly executed by Chandgi Ram. Smt. Gunwati filed a suit challenging the will as well as the mutation of the property in favour of Smt. Nand Kaur. Both the Courts below dismissed the suit filed by Smt. Gunwati holding that the will executed by Chandgi Ram was a valid document. To challenge the judgments passed by both the Courts below, Smt. Gunwati has filed the present regular second appeal. 3. I have heard the counsel for the parties and have gone through the evidence adduced on record. 4. Section 63 of the Indian Succession Act, 1925 , lays down the following three ingredients in order to prove the validity of the Will:- (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction or the testator or has received from the testator a personal acknowledgment of his signature or mark or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. 5. Sufficient evidence has been adduced on record by the respondent-defendant Smt. Nand Kaur to prove the validity of the Will (Ex.D7). There is nothing on record to show that the execution of the Will is shrouded by suspicious circumstances or that Chandgi Ram deceased was not of sound disposing mind or incapable of making the Will. The testator Chandgi Ram has put his mark on the Will in question at the appropriate place. The Will has been attested by three witnesses, namely, Yudhishter Singh, Milkhi Ram and Devi Singh Lambardar, all of whom have been examined by the defendant-respondent. She has also examined Chaman Lal petition writer, who had scribed the Will in question and also Mr. Yash Pal Jain, who proved the thumb impressions marked as A and D on the Will (Ex.D7) dated March 28, 1972, of Chandgi Ram deceased after comparing the same with thumb mark S of Chandgi Ram on the exchange deed kept in the office of the Sub Registrar, Gohana. The statements of all the three witnesses coupled with the statement of Chaman Lal petition writer clearly go to show that Chandgi Ram was keeping good health and was of sound disposing mind at the time of the execution of the Will and that he had put his thumb impression thereon after it was read over and made understood to him by the petition writer. The three witnesses had attested the Will in the presence of Chandgi Ram. Moreover, the Will is a registered document. The three witnesses had attested the Will in the presence of Chandgi Ram. Moreover, the Will is a registered document. It was registered during the life time of Chandgi Ram in the year 1972, whereas Chandgi Ram died in the year 1977, On the basis of the Will (Ex.D7) the mutation was sanctioned in favour of Smt. Nand Kaur on November 23, 1978, i.e., within about 1-1/4 years of the death of the testator. Thus, no accusing finger can be raised with, regard to the execution of the Will by Chandgi Ram deceased in favour of his daughter Smt. Nand Kaur. At the time of the execution of the Will, Smt. Nand Kaur was his only daughter. His other daughter, Smt. Chhan Kaur had died long time back before the coming into force of the Hindu Succession Act in the year 1956. Smt. Gunwati plaintiff-appellant, who has claimed her right through her other Smt. Chhan Kaur, was married somewhere in the year 1957. Chandgi Ram deceased was being looked after by his daughter Smt. Nand Kaur respondent and her sons. Thus, it was but natural that he would dispose of the property by executing a Will in favour of his only surviving daughter Smt. Nand Kaur. Both the Courts below have concurrently held the Will in question to be a valid document. It being a concurrent finding of fact, cannot be interfered with in second appeal. 6. In the light of the above discussion, I do not find merit in the present appeal. It is, accordingly, dismissed.