RSA No.3375 of 2006 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
R.S.A. No. 3375 of 2006
Date of Decision:November 10, 2009
Mateshwar Dayal ...........Appellant
Versus
Parkash Chand and others ..........Respondents
Coram: Hon'ble Mrs. Justice Sabina
Present: Mr.Rakesh Nehra,Advocate for the Appellant.
**
Sabina, J.
Plaintiff filed a suit for declaration and possession. The
suit of the plaintiff was dismissed by the Additional Civil Judge (Senior
Division) Jhajjar vide judgment and decree dated 14.8.2002. Aggrieved by
the same, plaintiff preferred an appeal and vide judgment and decree dated
16.12.2005, learned Additional District Judge, Jhajjar dismissed the same.
Hence, the present appeal.
The case of the parties, as noticed by the learned District
Judge in paras 2 and 3 of its judgment reads as under:-
2.The case of the plaintiff before the trial Court, in brief, was that
he had filed a suit for declaration and possession alleging himself
to be owner of a Nauhra in dispute situate at Mohalla Tella,
Jhajjar, which was inherited by him from his grand father Pt.
RSA No.3375 of 2006 2Devi Dayal, through a registered Will dated 9.2.1971. As per
plaintiff, he lost the original Will dated 9.2.1971 while going in a
bus and,therefore, he produced the certified copy thereof. It was
alleged that on 5.11.1995, when the plaintiff was away to
Goverdhan in U.P., the defendants had wrongfully and without his
consent dispossessed him and entered into the possession of the
Nauhra in dispute by dreaking open the lock thereof. He asked
the defendants to handover the possession of the Nauhra in
dispute but to no avail. Hence, a civil suit No.671 of 1995 was
instituted against the defendants on 9.12.1995.
3.On notice, defendants contested the claim of the plaintiff
alleging that plaintiff was not owner of the property in dispute. In
fact, it is defendants No.1 to 4 who became owner in possession
of the disputed property vide sale deed dated 23.1.1976. As per
them, in fact, one Braham Parkash son of Devi Dayal resident of
Jhajjar was owner in possession of the plot which he had received
through a registered Will dated 1.4.1971. Said Braham Parkash
sold the plot in dispute to defendants no.1 to 4.
3. It was also averred that since the Will dated 9.1.1971 was
cancelled by Pt.Devi Dayal by making another Will dated
1.4.1971. So the former will is not effective and not binding upon
the parties.
On the pleadings of the parties, the following issues were
framed by the trial Court on 10.4.1996:-
“1. Whether the plaintiff is owner of disputed plot as alleged?
OPP
RSA No.3375 of 2006 3
2. Whether he Will dated 9.2.1971 is binding on the rights of the
defendants?OPP
3. Relief.”
Vide order dated 15.3.2002, the following additional issue was
framed:-
“Whether the Will dated 1.4.1971 was executed by Devi Dayal in
favour of defendants?OPD
After hearing the learned counsel for the appellant, I am of
the opinion that this appeal is devoid of any merit.
A Will is a document that speaks of the mind of the deceased
after his death. The executant of the Will is though never available for
deposing as to under what circumstances, he has executed the Will. This
aspect introduces an element of solemnity in the decision of the question
whether the document propounded is proved to be the last Will of the
testator. Normally, the onus which lies on the propounder can be taken to
be discharged on proof of the essential facts which go into the making of
the Will. A Will is required to be proved like any other document. Since
the Will is required to be attested and as per Section 68 of the Indian
Evidence Act, 1872, at least one attesting witness is required to be
examined to prove due execution of the Will. The attesting witness is
required to establish that the Will in question was executed by the testator
in the presence of attesting witness and they had attested the same in the
presence of the testator. In a case where the Will is a registered document
then the endorsement made by the Sub Registrar that the Will had been
thumb marked or signed by the executant in his presence after it was read
over to the executant has a presumption of truth. It is also a settled
RSA No.3375 of 2006 4
proposition of law that in connection with Wills execution of which is
alleged to be surrounded by suspicious circumstances, the test of
satisfaction of judicial conscience has been evolved. That test emphasis that
in determining the question as to whether an instrument produced before the
Court is the last Will of the testator, the Court is called upon to decide a
solemn question and by reason of suspicious circumstances, the Court has to
be fully satisfied that the Will has been validly executed by the testator.
Plaintiff filed a suit for declaration and possession that he
was owner of the suit land on the basis of Will executed in his favour by his
grand father dated 9.2.1971. In order to prove the due execution of the
Will, plaintiff examined Registration Clerk, PW1 Jai Parkash and himself
appeared in the witness box as PW2. Plaintiff also examined PW3 Lachman
Singh, Attesting Witness of the Will. Although the Will Exhibit P1 is a
registered document but the propounder of the Will was also required to
establish that it was a genuine document. While executing the Will Exhibit
P1, the executant had not given any reason as to why he was depriving his
son from his property. This is sufficient ground to render the Will a
suspicious document. Hence, the Courts below rightly held that the Will
Exhibit P1 was not a genuine document. So far as Will Exhibit DW4/A
dated 1.4.1971 is concerned petitioner had failed to examine the attesting
witness of the Will and hence, the learned trial Court had rightly held that
the Will Exhibit DW4/A was not proved in accordance with law to have
been duly executed by the executant. Braham Parkash was the son of Devi
Dayal and after his death Braham Parkash inherited the property of his
father. Braham Parkash executed the sale deed dated 23.1.1976 in favour of
the defendants. The defendants, in order to prove the due execution of the
RSA No.3375 of 2006 5
sale deed examined the Registration Clerk Vinod Kumar DW1, who
brought the original record and proved the due registration of the sale deed
Exhibit D1. Defendant- Parkash Chand himself appeared in the witness box
as DW2 and has deposed with regard to due execution of the sale deed. The
sale deed was executed in the year 1976 ,whereas, the suit was filed by the
plaintiff in the year 1995. In these circumstances, the suit of the plaintiff
was liable to be dismissed.
No substantial question of law arises in this regular second
appeal which would warrant interference by this Court. Accordingly, this
appeal is dismissed.
( Sabina )
Judge
November 10, 2009
arya