Dismissed

Nachhattar Singh v. Dalip Singh

Punjab & Haryana HC17 Feb 2012RSA/2616/2010

Case brief

AI extract

What is this about?

In a second appeal concerning inheritance rights to a suit property based on conflicting Wills, the High Court dismissed the appeal. The Court upheld lower courts' findings that a prior Will was cancelled and a subsequent Will lacked proper attestation, holding no question of law arose for determination under Section 100 CPC.

What did the court decide?

The second appeal was dismissed with no substantial question of law arising for determination.

Nachhattar Singh Vs Dalip Singh — Succession and Inheritance | Punjab & Haryana HC (2012)

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RSA No.2616 of 2010(O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.2616 of 2010(O&M) Date of decision:17.02.2012

Nachhattar Singh

......Appellant

Vs.

Dalip Singh

...Respondent

CORAM:- HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA.

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Present: Mr. A.S. Khinda, Advocate for the appellant.

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Tejinder Singh Dhindsa, J.

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CM No.7849-C of 2010:

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This is an application under Section 151 CPC seeking

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condonation of 50 days delay in refiling the appeal.

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In view of the averments made in the application, prayer is allowed. Delay of 50 days in refiling the appeal is condoned.

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CM disposed of.

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RSA No.2616 of 2010:

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The plaintiff/appellant is in second appeal before this Court. Plaintiff filed a suit for declaration by pleading that Gurdial Kaur widow of Rachan Singh was his real sister and owner of the suit property. Defendant on the other hand, is the son of the brother of the husband of Gurdial Kaur and his father's name is Pritam Singh. It was stated that Pritam Singh and Rachan Singh had separated a long time back and had partitioned their properties during the lifetime of Rachan Singh. The entire estate of Rachan Singh upon his death was inherited by his wife Gurdial Kaur being his only legal heir. It was pleaded that upon the death of Rachan Singh,

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RSA No.2616 of 2010(O&M)

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there was nobody to look after Gurdial Kaur. Accordingly, the plaintiff being the real brother of Gurdial Kaur started residing with her and had been serving her. It was pleaded that Gurdial Kaur has executed a registered Will in favour of the plaintiff on 16.07.1992 in respect of all moveable and immoveable properties. She had also executed a power of attorney in favour of the plaintiff on 13.06.1995 in respect of all rights pertaining to the property. It was pleaded that the defendant was a greedy person, who had forcibly taken Gurdial Kaur in the last days of her life and confined her to his house. Accordingly, the plaintiff had even moved an application to the SDM, Kharar, who had issued search warrants under Section 97 Cr.P.C. Gurdial Kaur was accordingly, produced on 23.05.1997 and upon recording her statement, defendant had been allowed to take her along. Gurdial Kaur died on 12.06.1997 and the defendant set up a false and fabricated Will dated 12.06.1997 itself and upon the basis thereof, had got entered the mutation regarding inheritance of Gurdial Kaur and had even taken forcible possession. Plaintiff pleaded that he is the sole owner of the property left by Gurdial Kaur-his sister and accordingly, the declaration had been sought. The defendant contested the suit by stating that upon the death of Rachan Singh, Gurdial Kaur had started to reside with the defendant till her death. It was the defendant, who had looked after and served Gurdial Kaur after the death of her husband. It was stated that Gurdial Kaur had infact executed a Will on 12.06.1997 and the Will dated 16.07.1992, relied upon by the plaintiff is a forged document. All other assertions and averments made in the plaint were denied. The trial Court upon having heard the respective parties and having scanned the evidence on record, held both the Wills dated 16.07.1992 as also 12.06.1997, to be not genuine. Accordingly, it was

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RSA No.2616 of 2010(O&M)

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held that estate of Gurdial Kaur in terms of moveable as also immoveable properties would devolve upon the heirs of her husband in the light of Section 15 of the Hindu Succession Act.

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Feeling aggrieved, the plaintiff/appellant preferred the civil appeal and the defendant also filed cross-objections to the extent of the findings against him as regards the Will dated 12.06.1997. Vide impugned judgment dated 20.08.2009, the Additional District Judge, SAS Nagar, Mohali, has dismissed the appeal as also the cross-objections and has affirmed the findings of the trial Court. Resultantly, the plaintiff/appellant is in second appeal before this Court.

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I have heard Mr. A.S. Khinda, Advocate for the appellant at length.

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As regards the Will dated 16.07.1992 that had been set up by the plaintiff/appellant, Ex.PW3/B/1 is concerned, the Courts below have rightly discarded the same, in view of the concurrent finding that deceased-Gurdial Kaur had cancelled such Will during her lifetime vide cancellation deed dated 16.06.1996, Ex.DW2/A. Such cancellation deed was registered before Sub Registrar, Kharar. DW2, Telu Ram was one of the attesting witness to the cancellation deed, who was examined and testified in clear terms that Gurdial Kaur had cancelled the previously executed Will dated 16.07.1992 in favour of Nachattar Singh-plaintiff/appellant. He further testified that the cancellation deed had been read over and explained to Gurdial Kaur by Sh. Ashwani Sharma, Advocate in his presence and in the presence of Mal Singh-Lambardar. He further deposed that Gurdial Kaur had thumb marked the cancellation deed DW2/A by admitting it as correct in their presence and it was thereupon that he and Mal Singh had attested the cancellation deed.

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RSA No.2616 of 2010(O&M)

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Likewise, both the Courts have held the Will dated 12.06.1997, set up by the defendant also to be shrouded by suspicious circumstances. The Courts have noticed that the Will was executed just one day prior to the death of testator. Still further, no attesting witness to the alleged Will dated 12.06.1997 was examined and as such, the Will has been held to be not proved as per learned counsel.

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The question with regard to the Will having been duly executed and the same being genuine or not, is essentially a finding of fact. Hon'ble Apex Court in the case of Rur Singh through L.Rs & others V. Bachan Kaur reported as 2009 (2) RCR (Civil) 511 has considered the aspect of due execution of a Will as also proving of the same and has observed in the following terms:

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"14. The High Court essentially entered into the arena of appreciation of evidence. It interfered with the concurrent findings of fact arrived at by the courts below. Execution of a Will is required to be proved in terms of the provisions of Section 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act.

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The statutory requirements to prove a Will in terms of the aforementioned provisions have been laid down in a large number of decisions. We may notice a few of them.

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In Janki Narayan Bhoir v. Narayan Namdeo Kadam, 2003(1) RCR (Civil) 409:(2003) 2 SCC 91, while dealing with the question elaborately, this Court held:

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"8. To say will has been duly executed the requirement mentioned in Clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear

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RSA No.2616 of 2010(O&M)

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that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgment of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the Will in the presence of the testator."

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As regards compliance of the provision of Section 68 of the Evidence Act, it was opined:

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"In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of the will. to put in other words, if one attesting witness can prove execution of the will in terms of Clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under

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RSA No.2616 of 2010(O&M)

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Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."

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Following the said decision, as also the other decision in Benga Behera & anr. V. Braja Kishore Nanda & ors., 2007(3) RCR (Civil) 240: 2007(3) RAJ 242; 2007 (7) SCALE 228, this Court held:

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"Execution of a Will must conform to the requirement of Section 63 of the Succession Act, in terms whereof a Will must be attested by two or more witnesses. Execution of a Will, however, can only be proved in terms of Section 68 of the Indian Evidence Act. In terms of said provision, at least one attesting witness has to be examined to prove execution of a Will."

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This Court while exercising the jurisdiction under Section 100 of the Code of Civil Procedure in second appeal, will not embark upon an exercise of re-appreciation of evidence. The concurrent finding of fact as regards a particular Will having been cancelled as also the findings with respect to another Will having been discarded on account of various suspicious circumstances, will be binding on the High Court. I find no perversity in the findings of the Court below.

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No question of law much less substantial question of law arises for determination in the present second appeal and the same is accordingly, dismissed.

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Appeal dismissed .

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February 17, 2012 (TEJINDER SINGH DHINDSA) harjeet JUDGE

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Note: Whether to be reported? Yes

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RSA No.2616 of 2010(O&M) -7-

Nachhattar Singh v. Dalip Singh

Case brief

What is this about?

What did the court decide?

Nachhattar Singh v. Dalip Singh

Case brief

What is this about?

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