JUDGMENT
R.L. Anand, J.
1.This is a defendants* appeal and has been directed against the judgment and decree dated 6.11.1979 passed by the Court of Additional District Judge Gurdaspur who affirmed the finding of the learned trial Court on issues No. 1 and 2 but finding of the learned trial Court on issue No. 3 was partly set aside by holding that though the decree for declaration granted by the trial Court on issue No. 1 and 2 is maintainable but the trial Court was not justified in granting an injunction.
2. The pleadings of the parties can be summaricd as under:-
Smt. Vidya Devi plaintiff is the real sister of Ananti Devi defendant No. 1. She (Vidya Devi) filed a suit for declaration to the effect that plaintiff and defendants No. 1 are the owners of 1/2 share each in the land measuring 93 Kanals 6 Marias, fully described in the Head Note of the plaint situated in village Simbli Gujran and that decree for permanent injunction be passed in her favour against the defendants from interfering in her possession over the land measuring 3 Kanals 4 Marias shown by the Khasra Numbers mentioned in the plaint. The case set up by the plaintiff was that Smt. Dhanni was the mother of the plaintiff and defendant No. 1 and she was the absolute owner of the suit land. She executed a Will on 6.7.65 in respect of her estate vide which she bequeathed her entire property including the suit land in favour of the plaintiff and defendant No. 1 in equal shares. She during her life time in accordance with her Will parted with the possession of the entire land and delivered one half land to the plaintiff and the other half to defendant No. 1. Since then the plaintiff is cultivating land through her son but the defendants No. 1 and 2 namely Smt. Ananti Devi and Smt.Achar wanted to grab the entire land and so much so they even denied the execution of the will executed by Smt. Dhanni Devi in favour of the plaintiff and defendant No. 1. Hence the suit.
3. Notice of the suit was given to the defendants. A pre-liminary objection was taken that the present suit is not legally maintainable and that the plaintiff has no locus standi to file the suit. On merits, it was the stand of the defendants that Smt. Dhanni executed a will dated 12.2.1976 vide which she bequeathed her entire property in favour of defendant No. 1 and as such she has become the sole owner of the suit land.
4. From the pleadings of the parties the learned trial Court framed the following issues ;-
1. Whether Smt. Dhanni executed a Wiil in favour of the plaintiff and defendant No. I on 6.7.1965 bequeathing her property to the plaintiff and defendant No. 1 ?
2. Whether Smt. Dhanni executed a Will in favour of defendant No. 1 on 12.2.1976?
3. Whether the suit is not maintainable in the present form?
4. Relief.
5. Parties led their oral as well as documentary evidence and on the conclusion of the trial, issue No. 1 was decided in favour of the plaintiff and issue No. 2 was decided against defendant No. 1, Issue No. 3 was decided in favour of the plaintiff and finally
decree for declaration and permanent injunction as prayed for by the plaintiff, was passed by the trial Court vide judgment and decree dated 11.11.1978.
6. Aggrieved by the judgment and decree of the trial Court, the defendants filed an appeal before the Court of Additional District Judge, Gurdaspur who vide impugned judgment and decree dated 6.11.1979 upheld the finding of the trial Court on issues No. 1 and 2 but partly disturbed the finding of the trial Court on issue No. 3 by holding that though the decree for declaration as prayed for by the plaintiff can be granted yet a decree for injunction in her favour cannot be passed mainly on the ground that by virtue of the Will dated 6.7.65 the plaintiff and defendant No. 1 had become co-sharers of the estate bequeathed to them and since the property has not been portioned, therefore, a decree for permanent injunction with respect of specific khasra numbers could not be passed in favour of the plaintiffs.
7. The defendants are still not satisfied with the judgment and decree passed by the first appellate Court. Hence the present appeal.
8. I have heard Ms. Manjeet, learned counsel appearing on behalf of the appellants and Shri Deepak Thapar, learned counsel appearing on behalf of the respondent and with their assistance have gone through the record of the case.
9. The learned counsel appearing on behalf of the appellants vehemently submitted that the finding of the trial Court on issue No. 2 is erroneous. It stands proved on the record that Smt. Dhanni executed a valid registered Will dated 12.2.76 in favour of Smt. Ananti Devi defendant vide which the entire property has been given to her and as such the will dated 6.7.65 relied upon by Smt. Vidya Devi in her favour and in favour of defendant No. 1 could not be acted upon. Since the defendant No. 1 had become full-fledged owner of the entire property on the basis of the Will dated 12.2.76, therefore, the Will dated 6.7.65 has become a waste paper and it could not be acted upon for the benefit of the plaintiff. Counsel further submitted that if the finding of the trial Court as well as the first appellate Court on issues No. 1 and 2 are set aside, then the suit of the plaintiff is liable to be dismissed as a whole because she is not the owner of the property as she is not in possession of the property in her own right but as a tres-passer.
10. On the contrary, the learned counsel for the respondent submitted that the Will dated 12.2.1976 has not been proved according to law and as per the provisions of Section 63 of the Indian Succession Act. In support of his contention, the learned counsel for the respondent has invited my attention to the observation made by the first appellate Court and submitted that it was the conceded case of the appellants before the first appellate Court that Will dated 12.2.76 has not been proved on the record according to law. Moreover, this Will dated 12.2.76 is a procured document as defendant No. 1 had taken steps in the execution of this document. Defendant No. 1 who is the propounder of Will dated 12.2.76 has not been able to remove the suspicious circumstances surrounding the Will. In the will dated 12.2.76 there is no reference with regard to the Will dated 6.7.65. Moreover, Smt. Dhanni on the date of the execution of the Will dated 12.2.76 was not in a sound and disposing mind, therefore, this Will cannot be acted upon. It was also submitted by Shri Thapar that Will dated 6.7.65 stands proved from the statements of the attesting witnesses as well as the Sub Registrar and therefore, this Will should be acted upon. Moreover, this Will is a natural testament because through this Will Smt. Dhanni had bequeathed her entire property in equal shares in favour of the plaintiff and defendant No. 1. It has not been shown on the record that Smt. Dhanni when she allegedly executed the Will dated 12.2.76 in favour of defendant No. 1 was having strained relations with the plaintiff. There was hardly any occasion for Smt. Dhanni to change her mind after 11 years in the year 1976 and, therefore, the Will dated 12.2.76 has been rightly ignored by the Courts below.
11. After considering the rival contentions of the parties, I am of the opinion that there is no merit in this appeal and the same deserves to be dismissed. I am also of the
opinion that the Will dated 12.2.76 has not been proved according to law and on the contrary the Will dated 6.7.65 Ex.P.1 stands proved. Balwant Singh PW-1 who is the attesting witness of the Will Ex.P1 stated that Smt. Dhanni in his presence had executed the Will by putting the thumb-impress ion and he also put his signatures in her presence. This witness has no axe to grind against defendant No. 1. The statement of PW-1 is further supported by Shri Hari Singh PW-2 and Panjab Singh PW-3. These two witnesses are also attesting witnesses of the Will and they had consistently deposed that Smt. Dhanni executed the Will in their presence bequeathing the property in equal shares in favour of the plaintiff and defendant No. 1. The Will Ex.P.1 is a registered document. It is a natural document. It is not surrounded by any suspicious circumstances. Even the defendant No. 1 Smt. Ananti Devi has not categorically denied the execution of the Will Ex.P1 executed by her mother. DW-1 Shri Faqir Chand Petition Writer also admitted in the cross-examination that Will Ex.P1 was got scribed from him by Smt. Dhanni Devi and at that time both the plaintiff and defendant No. 1 were present. Therefore, 1 affirm the findings of the trial Court as well as of the first appellate Court on issue No. 1.
12. It has not been shown that what was the necessity on the part of Smt. Dhanni to execute the Will dated 12.2.76 in favour of defendant No. 1. As regards issue No. 2 whether the deceased Smt. Dhanni Devi executed any registered Will dated 12.2.76 in favour of defendant No. 1, again the onus lies upon defendant No. 1 to dispense with all the surrounding circumstances. Section 63 of the Succession Act lays down that the will shall be attested by two or more witnesses, each of whom has been the testator, sign or affix his mark to the Will or has seen some other person sign the will, in the presence and the direction of the testator, or has received from the testator a personal acknowledgement 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 will be present at the same time and no particular form of attestation shall be necessary.
13. DW1 Fakir Chand the petition-writer has simply deposed that he scribed the Will Ex.D1 at the instance of Dhanni Devi. This witness has nowhere stated that Smt. Dhanni Devi was in sound disposing mind at the time of the execution of the Will or that this Will was read over and explained to her or that she thumb-marked the same in token of its correctness in his presence. He has also not stated that the executant thumb-marked the Will in the presence of the witnesses. DW-2 Smt. Jhandu Ram deposed that Will Ex.D.1 was executed by Smt. Dhanni Devi before the Sub Registrar and Dhanni Devi thumb-marked the Will and that it was read over to her by the Sub Registrar and the witnesses also thumb-marked the Will before the Sub Registrar. It has been rightly remarked by the Courts below that Section 63 quoted above has not been complied with by defendant No. 1 in proof of Will Ex.D1. The next attesting witness is DW4 Kuldip Singh. This witness is also silent about the sound and disposing mind at the time of the execution of the Will Ex.D1 or that she was capable of forming rational judgment, no presumption can be drawn with regard to the attestation of the Will Ex.D1. As I stated above that it was for defendant No. 1 to remove the suspicious circumstances surrounding the Will, it has not been shown why Smt. Dhanni Devi felt the necessity to execute the second Will after a lapse of 11 years in favour of her other daughter. In the second will also, there is no reference with regard to the revocation of the earlier Will. Moreover, it is established on the record that defendant No. 1 was admittedly present at the time of the execution of the Will, which is suggestive of the fact that defendant No. 1 has taken an active part in the execution of the Will which confers the entire benefit to her and therefore, it was imperative on the part of defendant No. 1 to explain by cogent and reliable evidence that she never participated in the execution of other will Ex.D1.
14. Faced with this difficulty, the counsel for the appellants tried to show that there were strained relations between the plaintiff and Smt. Dhanni Devi as the plaintiff earlier filed a complaint against defendant No. 1 and her husband Achar Ram under Sections 232 and 342 of the Indian Penal Cod and that Smt. Dhanni Devi was also summoned by the Court. The counsel also submitted that there was every reasonable reasons on the part of the Dhanni Devi to execute a fresh Will as the relations between the plaintiff and Dhanni Devi had become strained on account of the filing of the complainant. There is no merit in this contention. There is no averment in the Will Ex.D.1 on the part of Smt. Dhanni Devi that her relations with the plaintiff had become strained on account of the filing of the complainant and for this reason she is changing her mind for the execution of the fresh Will. The submission which has been raised by the learned counsel for the appellants in support of Will Ex.D.1, in my opinion, cannot be allowed to be taken before me if one has a glance to para No. 4 of the judgment passed by the first appellate Court. A reading of the same would show that the learned counsel who appeared on behalf of defendant No. 1 and 2 before the first appellate Court, did not challenge the finding of the trial Court on issues No. 1 and 2. Rather he conceded before the first appellate Court by stating that although the appellants examined the scribe and two attesting witnesses to prove the Will dated 12.2.76 Ex.D.1 yet this evidence was not enough to fulfil the requirement of Section 63 of the Indian Succession Act and he has also conceded that the Will Ex.D.1 has not been proved according to law. In view of this submission, raised by the learned counsel appearing on behalf of defendants No. 1 and 2 before the first appellate Court, it is not now open to the learned counsel appearing on behalf of these appellants to show before the High Court that Will Ex.D.1 has been proved according to law.
15. Be that as it may, I have already discussed the evidence led by the defendants in support of the Will Ex.D.1 to show that this will has not been proved according to law and moreover, this is an unnatural document. The suspicious circumstances surrounding the Will have not been removed by the defendants who are propounders and therefore, the Will Ex.D.1 though registered and though of the subsequent year, cannot supersede and revoke the earlier Will dated 6.7.65 vide which the entire property was bequeathed in equal shares in favour of the plaintiff and defendant No. 1. Therefore, I affirm the finding of the trial Court as well as the first appellate Court on issue No. 2.
16. Moment the Will Ex.P.1 is upheld, the status of plaintiff and defendant No. 1 would be that of co-sharer till the property is partitioned by meets and bounds. The possession of one of the co-sharers over a specific khasra number will be considered the possession on behalf of the other co-sharers also. How the property is to be partitioned, is the concern of the revenue authorities when the matter will be placed before them in the portion proceedings.
17. Therefore, I do not see any wrong in the judgment and decree of the first appellate Court which rightly set aside the finding of the trial Court is issue No. 3.
18. The net result is that this appeal fails and is hereby dismissed with no order as to
costs.