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2010 DIGILAW 1493 (PNJ)

Gurmail Singh v. Gurdev Singh

2010-04-22

L.N.MITTAL

body2010
Judgment L.N.Mittal, J. 1. This is second appeal by plaintiffs, who have been unsuccessful in both the Courts below. 2. Dasounda Singh had three sons and a daughter i.e. Gurmail Singh- plaintiff No. 1 Harnek Singh (predecessor of plaintiff Nos. 2 to 4), Gurdev Singh- defendant No. 1 and Karnail Kaur defendant No. 2. Dasounda Singh was owner in possession of the suit land. The plaintiffs filed suit alleging the Dasounda Singh executed registered Will dated 15.11.1968 in favour of plaintiff No. 1 and Harnek Singh and in view thereof, plaintiffs only have become owners in possession of the suit land and mutation No. 781 dated 24.08.1999 sanctioned in favour of both the parties, is illegal, null and void. Sale deed dated 07.04.2000 executed by defendant No. 2 in favour of defendant No. 1 is also, therefore, illegal null and void because defendant No. 2 inherited no share in the suit land. The plaintiffs also sought permanent injunction besides declaration that they are owners in possession of the suit land to the exclusion of the defendants. 3. Defendants controverted the plaintiffs averments and pleaded that Dasounda Singh never executed Will dated 15.11.1968. Mutation has been rightly sanctioned in favour of both the parties and accordingly plaintiff No. 1 and both defendants became owners if possession of 1/4th share each and plaintiff Nos. 2 to 4 also became owners in possession of 1/4th share. Consequently, sale of her share by defendant No. 2 in favour of defendant No. 1 is also valid. Defendant No. 1 is also bona fide purchaser of the said land for consideration. Various other pleas were also raised. 4. Learned Additional Civil Judge (Senior Division), Fatehgarh Sahib vide judgment and decree dated 29.09.2008 dismissed the plaintiffs suit holding that the Will set up by the plaintiffs was not proved and consequently on the basis of natural succession, both parties inherited the suit land in the shares pleaded by the defendants. First appeal preferred by the plaintiffs has been dismissed by learned Additional District Judge, Fatehgarh vide judgment and decree dated 11.05.2009. Feeling aggrieved the plaintiffs have preferred the instant second appeal. 5. I have heard learned counsel for the parties and perused the case file. 6. First appeal preferred by the plaintiffs has been dismissed by learned Additional District Judge, Fatehgarh vide judgment and decree dated 11.05.2009. Feeling aggrieved the plaintiffs have preferred the instant second appeal. 5. I have heard learned counsel for the parties and perused the case file. 6. It is undisputed that in view of Section 63(c) of the Indian Succession Act, 1955 and Section 68 of the Evidence Act, Will is required to be proved by examining at least one attesting witness thereof. In the instant case, however, the plaintiffs version is that both the attesting witnesses of the Will as well as scribe of the Will have since died. For such a situation provision is made in Section 69 of the Evidence Act which lays down that if no attesting witness can be found, then it must be proved that attestation of one attesting witness at least is in his handwritting and that signature of the executant is in the handwritting of that person. In the instant case however, provision of Section 69 of the Evidence Act has also not been satisfied by the plaintiffs as they have not led any evidence to prove attestation of at least one attesting witness of the Will to be his handwritting and that the Will bears the thumb impression of the testator. In this view of the matter, Courts below have rightly found that the Will is not proved. 7. Faced with the aforesaid situation learned counsel for the appellants vehemently contended that the Will being more than 30 years old could be presumed to have been duly executed and attested in view of Section 90 of the Evidence Act. Reliance in support of this contention has been placed on a judgment of Privy Council in the case of Munnalal, minor and others v. Mst. Reliance in support of this contention has been placed on a judgment of Privy Council in the case of Munnalal, minor and others v. Mst. Kashibai and others, AIR (34) 1947 Privy Council 15, a judgment of Andhra Pradesh High Court in the case of Kesrapu Manikyalu v. Veena Perumallayya (died) and others, 2000(2) Civil Court Cases 247 and two judgments of Kerala High Court namely - Acho Dominic v. Xavier, 2000(2) Civil Court Cases 659 and Devassia Mathew v. Mathai, 1990 Civil Court Cases 557, on the contrary, learned counsel for respondent No. 1 contended that Section 90 of the Evidence Act is not applicable to prove the Will and in case of Will, provision of Section 68 or Section 69 of the Evidence Act has to be complied with. Reliance in support of this contention has been placed on a judgment of Honble Supreme Court in the case of Bharpur Singh and others v. Shamsher Singh, 2009(1) R.A.J. 502 : 2009 (1) RCR (Civil) 826 and a judgment of this Court in the case of Kapil Dev and another v. Smt. Surinder @ Bimla Kaul and others, 2006(2) RCR Civil 65. Learned counsel for respondent No. 1 also contended that the Will in question has also otherwise been found to be suspicious by the Courts below. 8. I have carefully considered the rival contentions. In view of judgment of Honble Apex Court in the case of Bharpur Singh (supra) and judgment of this Court in the case of Kapil Dev (supra), it has to be held that presumption under Section 90 of the Evidence Act is not applicable in the case of Will which has to be proved in accordance with Section 68 or Section 69 of the Evidence Act. In view of these judgments cited by learned counsel for the appellants as noticed hereinabove cannot be followed. In the instant case appellants have not led any evidence in compliance with provision of Section 68 or Section 69 of the Evidence Act. Consequently, the Will set up by the appellants is not proved at all. 9. In addition to the aforesaid Courts below have rightly found that the Will an question is also otherwise suspicious. Admittedly defendant are son and daughter of testator Dasounda Singh. Consequently, the Will set up by the appellants is not proved at all. 9. In addition to the aforesaid Courts below have rightly found that the Will an question is also otherwise suspicious. Admittedly defendant are son and daughter of testator Dasounda Singh. However, in the Will in question no reference at all has been made to the existence of defendants or their relationship with the testator Dasounda Singh. It has not even been mentioned that besides Gurmail Singh and Harmek Singh in favour the Will was executed, testator Dasounda Singh also had another son and a daughter i.e. defendants. Consequently no reason has either been assigned in the Will for disinheriting the defendants. Consequently concurrent finding by both the Courts below that Will is otherwise also suspicious, is fully justified. The said finding is based on proper appreciation of evidence and cannot be said to be perverse or illegal in any manner so as to warrant interference in the instant second appeal. 10. For the reasons recorded hereinabove, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed.