JUDGMENT
R.K. Nehru, J.
1. This Regular Second Appeal has been preferred against the judgment and decree dated 9th June, 1978 passed by the first Appellate Court affirming on appeal those of the learned trial Judge.
2. For better grasp of the controversy, the following pedigree-table may be looked into:-
Chanan Singh = Smt. Bholi (Plaintiff No. 2)
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Gurbax Singh Jagat Singh Smt. Prito
Defendant No. 1 Plaintiff No. 1 Plaiintiff No. 3
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Bhupinder Singh Surinder Singh
(Son) (Son)
Defendant No. 2 Defendant No. 3
3. Chanan Singh (hereinafter referred to as the testator) was the owner of 29 Kanals 4 Marlas of land in suit. He died leaving behind his widow Smt. Bholi (plaintiff No. 2) and Jagat Singh (defendant No. 1) and also one daughter Smt. Prito (plaintiff No. 3). Bhupinder Singh and Surinder Singh defendants No. 2 and 3 are the sons of Jagat Singh defendant No. 1.
4. The plaintiffs filed a suit for declaration to the effect that they were owners in possession of 3/4th share of the suit property left by Chanan Singh by way of inheritance and also for permanent injunction restraining the defendants from interfering in their peaceful possession over the suit property. They also pleaded that in case they were not found to be in possession of the suit property, a decree for joint possession of their shares be granted in their favour.
5. The defendants contested the suit and inter alia pleaded that the plaintiffs were not in possession of any part of the suit land. The defendants set up a Will stated to have been executed by Chanan Singh on February 20, 1972 in favour of defendants Nos. 2 and 3 on the basis of which they claimed to have become the owners of the entire suit property.
6. The parties were put to trial on the following issues:-
1) Whether Chanan Singh deceased executed a valid Will according to law in favour of defendants No. 2 and 3 on February 20, 1972 ? OPD.
2) Whether the plaintiffs can challenge the said Will under the custom as alleged in para No. 6 of the plaint ? OPD.
3) Whether the plaintiffs are in possession of the suit land ? OPD.
4) Whether the plaintiffs are estopped by their act and conduct to file the present suit ? OPD.
5) Whether the plaint has not been correctly valued for the purpose of Court-fee and jurisdiction ? OPD.
6) Relief.
7. The trial Court answered issue No. 1 in favour of the defendants by holding that Will Ex. D1 was validly executed by Chanan Singh. Issue No. 2 was decided against the plaintiffs while issue No. 3 against them. Issues No. 4 and 5 were answered against the defendants. In the ultimate, analysis, the suit of the plaintiffs was dismissed with costs vide judgment and decree dated November 11, 1976.
8. The plaintiff challenged the aforesaid judgment and decree of the trial Court in the first appeal. The first Appellate Court vide judgment and decree dated June 9, 1979 dismissed the appeal affirming the judgment and decree of the learned trial Court.
Aggrieved against the judgment and decree of the first Appellate Court, the plaintiffs have come up in regular Second Appeal to this Court.
9. This appeal came up for consideration in this Court on February 16, 1990. The appeal was heard by G.C. Mittal, J. (now Hon’ble Chief Justice of Delhi High Court). After hearing the parties, the case was remitted under Order 41 Rule 25 CPC to the trial Court with the direction to give an opportunity to the plaintiff to lead evidence in rebuttal on the issue of Will and after hearing the arguments of the parties on the evidence already led and to be led to give its report on the issue of Will with further direction to send its report through the learned District Judge, Jalandhar, who, after hearing the parties, would give his separate report.
10. The reports of the trial Judge as well as of the first Appellate Court as directed by this Court have been received and the learned counsel for the parties have been heard.
11. The learned trial Court has decided the issue of Will in favour of defendants No. 2 and 3 and against the plaintiff. This finding has been affirmed by the Appellate Court in its report dated October 5, 1991.
12. The only point for consideration in this appeal before me is the finding of the Courts below on the issue of Will.
13. Learned trial Court has held the Will Ex. D1 as a valid and genuine document executed by Chanan Singh on the following grounds:-
i) That it is incorporated in the Will Ex. D1 that Gurbaksh Singh plaintiff was a bachelor and was spendthrift person, squandering away his property. This fact stands established from the following evidence:-
a) That on October 9, 1970 he had borrowed a sum of Rs. 5,000/- from one Charan Singh son of Tarlok Singh in which connection, he had executed pronote Ex D3 and receipt Ex. D4.
b) That vide sale deed Ex. D7, he had sold away his property for a sale consideration of Rs. 10,000/- so much so, that even Gurbaksh Singh plaintiff appearing as PW4 has admitted to have sold his entire land. This shows that the testator wanted to protect his property from being wasted and to give it to those in hands, it could be safe.
ii) That there were security proceedings between Gurbaksh Singh plaintiff on one hand and Bhupinder Singh defendant on the other hand and in these proceedings, testator Chanan Singh had stood surety for defendant Bhupinder and from this documentary evidence, it stands proved that Chanan Singh deceased had love and affection for his grand-children who are sons of the defendant Jagat Singh.
iii) That defendant No. 2 and 3 are sons of defendant No. 1 and are residing with the testator in village Chak Kalan for the last more than 20 years, as per domicile certificate dated January 28, 1987 (Ex. D2/1) issued by Balwant Singh Sarpanch PW2, who appeared as a witness for the plaintiff in rebuttal.
iv) That there is a clear mention in the Will that the testator has excluded his daughter Smt. Pritam Kaur plaintiff from his estate because she was married and he had spent sufficient amount on her marriage.
v) Merely because the last rites of the testator were performed by Gurbaksh Singh plaintiff would not in any manner make the Will Ex. D1 to be a suspicious document. The Will was scribed by Dr. Charan Singh DW4, a well educated person of the village and it was attested by Lt. Col. Bikram Singh (Retd). Sarpanch DW1 and Pargan Singh Panch PW 2 of the same village and nothing has been brought in their cross-examination which might reflect in any manner against their conduct.
14. All these circumstances go a long way to establish that the testator had love and affection for his grandsons who were living with him as proved from domicile certificate Ex.D2/1.
15. The reasoning of the trial Court in holding the Will Ex. D1 to be a genuine document has been accepted and affirmed by the first Appellate Court. These findings of the Courts below are based on evidence and good reasoning and there is no material pointed out by the learned counsel for the appellant which may persuade me to take a view contrary to those adopted by the Courts below. There is even not a whisper from the side of the defendants that the Will was the result of fraud much less executed under the influence exercised by the defendants. It may be mentioned here that although the Will has not been scribed by a regular deed writer and is not a registered document, yet the evidence led by the defendants goes a long way to establish that it was a genuine document and was the last Will of the testator. The scribe of the Will namely Dr. Charan Singh DW4 and attesting witnesses Lt. Col. Bikram Singh (Retd) DW1 and Pargan Singh DW2 were put to lengthy cross-examination by the plaintiff but no dent is found to have been created in their testimony, to hold that they are not truthful witnesses or had any motive to depose in favour of other defendants or against the plaintiff.
16. The conclusions arrived at by the Courts below that the Will Ex D1 is genuine and is a true document are findings of fact and cannot be interfered with in this Regular Second Appeal, more so when the learned counsel for the appellant could not point out any infirmity in the approach of the Courts below, who have based their conclusions on evidence on record.
17. For reasons stated above, this appeal fails and the same is accordingly dismissed. In the circumstances of the case, parties are left to bear their own costs.