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2011 DIGILAW 522 (PNJ)

Chotti v. Maya Devi

2011-02-09

L.N.MITTAL

body2011
JUDGMENT L.N. MITTAL, J (ORAL) - Chotti-Plaintiff has filed the instant second appeal, after remaining unsuccessful in both the Courts below. 2. Plaintiff-appellant and defendant Nos.4 to 9 (respondent Nos.13 to 18) are daughters of Harchand Mal alias Harchand Singh whereas defendant Nos.1 to 3-Madan Lal, Roshal Lal and Nasib Chand are sons of Harchand Mal alias Harchand Singh. Defendant No.1-Madan Lal had since died and is represented by respondent Nos.1 to 10 as his legal representatives whereas defendant Nos.2 and 3 are respondent Nos.11 and 12 herein. The dispute relates to inheritance of the suit land left by Harchand Mal alias Harchand Singh. Case of the plaintiff-appellant is that all the sons and daughters of Harchand Mal alias Harchand Singh i.e. both the parties inherited the suit land in equal shares i.e 1/10th share each. Accordingly, the plaintiff sought permanent injunction restraining defendant Nos.1 to 3, who claimed themselves to be exclusive owners of the suit land, from alienating the same without getting it partitioned. 3. Defendants No.1 to 3 set up registered Will dated 01.01.1985 executed by Harchand Mal alias Harchand Singh in favour of defendant Nos.1 to 3. Accordingly, they claimed to be exclusive owners in possession of the suit land. However, relationship between the parties was admitted. Defendant Nos.5 and 7 to 9 admitted the claim of the plaintiff whereas defendant No.6 was proceeded ex parte. 4. Learned Civil Judge (Senior Divison), Mansa vide judgment and decree dated 07.04.2008 dismissed the plaintiff's suit. First appeal preferred by plaintiff has been dismissed by learned Additional District Judge, Mansa vide judgment and decree dated 07.08.2009. Feeling aggrieved, plaintiff has preferred the instant second appeal. 5. I have heard learned counsel for the appellant and perused the case file. 6. In order to prove Will dated 01.01.1985, defendant Nos.1 to 3 have examined Gurdial Singh Ex-panch DW-2 one of the two attesting witnesses of the Will. He has stated according to version of contesting defendants about the due execution of the Will by Harchand Mal alias Harchand Singh. Nasib Chand-defendant No.3 also appeared as DW-1 and supported his own version. 7. The aforesaid evidence of the contesting defendants stands unrebutted. The said evidence is cogent and reliable and has not been shaken or impeached in any manner. Requirement of Section 68 of the Indian Evidence Act, has also been complied with by examining one attesting witness of the Will. 7. The aforesaid evidence of the contesting defendants stands unrebutted. The said evidence is cogent and reliable and has not been shaken or impeached in any manner. Requirement of Section 68 of the Indian Evidence Act, has also been complied with by examining one attesting witness of the Will. Learned counsel for the appellant contended that second attesting witness of the Will has not been examined. However, contesting defendants were not required to examine both attesting witnesses of the Will. On the contrary, the plaintiff-appellant herself also could examine the other attesting witness if the plaintiff thought that the other attesting witnesses would not support the execution of the Will. Consequently, no adverse inference can be drawn against the contesting defendants for not examining the other attesting witnesses of the Will. 8. Learned counsel for the appellant vehemently contended that the Will purports to have been thumb marked by the testator Harchand Mal alias Harchand Singh, although he used to run a shop and used to maintain account books and, therefore, in ordinary course, he should have signed the Will. However, the Will cannot be discarded merely on this ground because the testator might have thought it prudent to affix his thumb impressions on the Will so that there remains no dispute about the authenticity of the Will. Comparison of signature of a person by expert may be disputed because science of comparison of handwriting or signature is not perfect science. However science of comparison of finger print is perfect science and, therefore, the thumb impression can be proved to be of a particular person by authentic evidence of finger print expert. In the instant case, the plaintiff has not led any evidence to depict that thumb impressions appearing on the impugned Will are not of testator Harchand Mal alias Harchand Singh. Moreover, there is no evidence on record to depict that the testator always affixed signatures and never affixed thumb impressions. Consequently, the aforesaid contention cannot be accepted. On the contrary, the Will is registered one. Registration of the Will adds to its authenticity. The testator appeared before the Sub-Registrar, who read-over and explained the Will to the testator, who after admitting the same as correct, thumb marked the same and the witnesses also attested the same. Registration endorsement Ex.D-2 further fortifies the genuineness of the Will. On the contrary, the Will is registered one. Registration of the Will adds to its authenticity. The testator appeared before the Sub-Registrar, who read-over and explained the Will to the testator, who after admitting the same as correct, thumb marked the same and the witnesses also attested the same. Registration endorsement Ex.D-2 further fortifies the genuineness of the Will. Consequently, it also cannot be said that the testator was not in sound disposing mind at the time of execution of the Will. In fact there is practically no evidence to prove that the testator was not in sound disposing mind. 9. Learned counsel for the appellant next argued that wife and daughters were disinherited by the testator and there is no explanation for the same. The contention cannot be accepted because there is no pleading or evidence on record to depict as to when the testator’s wife died. The plaintiff has also claimed inheritance by natural succession in favour of only sons and daughters of the testator and not in favour of widow of the deceased. It is thus apparent that wife of the deceased was not alive. As regards disinheritance of daughters, it has been explained that they had already been married by giving suitable dowry. It is not uncommon in our country, particularly in this part of the country, to disinherit married daughters in favour of male descendants so as to keep the property within the family. Consequently, the Will cannot be termed to be suspicious on the ground of disinheritance of the daughters. 10. Learned counsel for the appellant also contended that defendant No.3 while appearing in the witness box admitted that all three brothers i.e defendant Nos.1 to 3 accompanied the testator at the time of execution of the Will and, therefore, the said beneficiaries took active part in the execution of the Will making it suspicious. The contention on first blush appears to be very forceful. However, on examining the same on the basis of the material on record, the contention cannot be accepted. Firstly, the Will being registered one, undue influence etc. is reasonably ruled out. Secondly and more importantly, the testator remained alive for more than 17 years after the execution of the Will. The Will is dated 01.01.1985. The suit was instituted on 07.09.2002. Firstly, the Will being registered one, undue influence etc. is reasonably ruled out. Secondly and more importantly, the testator remained alive for more than 17 years after the execution of the Will. The Will is dated 01.01.1985. The suit was instituted on 07.09.2002. It has been pleaded by the plaintiff herself that Harchand Mal alias Harchand Singh died about 15 days back i.e in August 2002. However, the testator during the said period of more than 17 years never took any step to cancel the Will. If the Will had been obtained by undue influence etc., the testator could have easily cancelled or revoked the same. However, the testator did not do so. Therefore, the Will cannot be discarded on the basis of the aforesaid contention. For the reasons aforesaid, I agree with the concurrent finding of the Courts below that execution of the impugned Will dated 01.01.1985 by the deceased testator in favour of defendant Nos.1 to 3 has been duly proved. Concurrent finding recorded by the Courts below to this effect is justified by the evidence on record and is supported by cogent reasons and is not shown to be perverse or illegal so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal because the aforesaid finding is not based on misreading or misappreciation of evidence. The appeal is accordingly dismissed in limine, being bereft of any merit.