The High Court dismissed the second appeal filed by the defendant-appellant against the confirmation of a Will dated 10.10.1981 in favor of the respondent, holding that the concurrent finding by courts below on the execution of the Will was not perverse.
The appeal was dismissed
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R. S. A. No. 1457 of 2009
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : R. S. A. No. 1457 of 2009 Date of Decision : August 17, 2010
Ghisu Ram .... Appellant Vs.
Mahender Singh .... Respondent
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
Present : Mr. Surinder Gandhi, Advocate for the appellant.
Mr. A. P. Bhandari, Advocate for the respondent.
L. N. MITTAL, J. (Oral) :
Ghisu Ram defendant, having remained unsuccessful in both the courts below, has filed the instant second appeal.
Suit was filed by Mahender Singh respondent against the appellant seeking declaration that the plaintiff-respondent is owner in possession of 6/48th share of land measuring 03 kanals 18 marlas. The plaintiff claimed that he has inherited the said share from Hari Ram alias Shree Ram in view of the Will dated 10.10.1981 (Ex.P-1). The plaintiff also challenged the alleged Will dated 20.01.1979 of Hari Ram alias Shree Ram
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in favour of defendant and the consequent mutation.
The defendant alleged that he has become owner in possession of the suit land having inherited it from Hari Ram alias Shree Ram vide Will dated 20.01.1979, whereas the Will set up by the plaintiff is forged and fabricated.
Learned Civil Judge (Junior Division), Bhiwani, vide judgment and decree dated 19.05.2001, decreed the plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Bhiwani, vide judgment and decree dated 31.10.2008. Feeling aggrieved, defendant has preferred the instant second appeal.
I have heard learned counsel for the parties and perused the
case file.
At the outset, it has to be noticed that Will set up by the defendant has not seen the light of the day. Consequently, defendantappellant has no right, title or interest in the suit land.
The plaintiff-respondent has led sufficient evidence to prove Will dated 10.10.1981 executed in his favour by Hari Ram alias Shree Ram. To prove the said Will, the plaintiff examined Ved Parkash (PW-11) one of the attesting witnesses of the Will and he has supported the case of the plaintiff regarding execution of the Will. Hari Om Lohariwala (PW-1), who is an Advocate, is son of another attesting witness of the Will namely Radha Krishan (since deceased). This witness has also stated about signatures of
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his father on the Will as attesting witness. Ghanshyam Dass – third attesting witness of the Will has also since died. Consequently, the plaintiff led whatever evidence could possibly be led to prove the Will. The plaintiff also complied with requirement of Section 68 of the Evidence Act, according to which at least one attesting witness of the Will was required to be examined to prove the Will.
Learned counsel for the appellant vehemently contended that statement of Yashpal Chand Jain – handwriting expert (DW-6) has not been taken into consideration by the courts below. The said witness opined that alleged signatures of Hari Ram alias Shree Ram testator and Radha Krishan – witness (since deceased) on Will dated 10.10.1981 (Ex.P-1) set up by the plaintiff were not written by the persons, who had written the standard signatures, with which signatures on the Will were compared. The contention cannot be accepted. Perusal of the judgments of the courts below reveals that both the courts have duly discussed the testimony of this expert witness. It may be added that science of comparison of handwriting is not a perfect science. It has also invariably been seen that expert witness ordinarily gives opinion regarding comparison of handwriting or signatures in favour of the party engaging the expert. In addition to it, in the instant case, standard signatures of Hari Ram alias Shree Ram had been affixed in the year 1962, whereas the Will was executed in the year 1981 and during long period of 19 years, some variations in the signatures were very natural.
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Moreover, testimony of the handwriting expert is not sufficient to rebut the direct testimony of Ved Parkash (PW-11) and also the testimony of Hari Om Lohariwala (PW-1). It may be added that Hari Om Lohariwala is Advocate and he has identified signatures of his father as attesting witness of the Will. There is no reason why Hari Om Lohariwala, Advocate would make false statement regarding signatures of his deceased father as attesting witness of the Will. The testimony of the said witness cannot be said to have been rebutted by the expert opinion of Yashpal Chand Jain (DW-6). On the other hand, direct evidence is more reliable as compared to the expert testimony regarding comparison of handwriting or signatures.
Learned counsel for the appellant also contended that the Will is suspicious because there is no reason why testator Hari Ram alias Shree Ram disinherited his own issues (two sons and two daughters) and executed Will in favour of plaintiff-respondent. The contention does not lie in the mouth of the defendant-appellant because the defendant-appellant also himself set up a Will in his favour allegedly executed by Hari Ram alias Shree Ram. It may, however, be added that the testator Hari Ram alias Shree Ram has assigned reasons for executing Will in favour of plaintiffrespondent in the Will itself.
Learned counsel for the appellant next contended that statement of attesting witness of the Will Ved Parkash (PW-11) is not reliable. The contention cannot be accepted. The witness was subjected to cross-
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examination and his testimony could not be impeached. The mere fact that Ved Parkash (PW-11) is a relative of the plaintiff-respondent is by itself not sufficient to discard his testimony.
Both the courts below, after appreciating evidence in detail, have come to the concurrent finding regarding execution of Will dated 10.10.1981 (Ex.P-1) by Hari Ram alias Shree Ram in favour of the plaintiff. The said finding is based on proper appreciation of evidence and is supported by detailed reasons and cannot be said to be perverse or illegal. Lower appellate court is the final court of fact. The finding recorded by the courts below, being not perverse or illegal, does not warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed.
( L. N. MITTAL ) JUDGE
August 17, 2010 monika
2 issues framed by the court
Whether the Will dated 10.10.1981 under which the respondent claims ownership was validly executed.
Whether the finding of the courts below regarding the executioin of the Will was perverse or illegal warranting interference in the second appeal.
1 provisions across 1 enactments
Ghisu Ram
Mahender Singh
L. N. MITTAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
