Sukhdev Singh v. Hardev Singh & Ors.

Hon'ble Mr. Justice L.N. Mittal Present : Mr. Shakti Paul Sharma, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 12039.C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 5 days in refiling the appeal is condoned. CM No. 12040.C of 2010 Allowed as prayed for. RSA No. 4045 of 2010 Plaintiff Sukhdev Singh having failed in both the courts below has filed the instant second appeal. Plaintiff and defendant no. 1 are brothers. Defendant no. 2 is their mother whereas defendants no. 3 and 5 are their sisters. Kartar Singh father of plaintiff and defendant no. 1 and 3 to 5 was owner of the suit Regular Second Appeal No. 4045 of 2010(O&M) -2- properties i.e. one vacant plot measuring 1 kanal 7 marlas and half share in plot measuring 6 marlas and Haveli measuring 18 marlas. The plaintiff's case is that all the six heirs of Kartar Singh i.e. plaintiff and defendants no.

1 to 5 inherited suit property in equal shares and Will dated 18.4.2000 allegedly executed by Kartar Singh is false and fabricated and illegal and void. Defendants no. 1 and 2 in separate but similar written statements pleaded that Will dated 18.4.2000 has been executed by Kartar Singh and the said Will is legal and valid. Various other pleas were also raised. Defendants no. 3 to 5 broadly admitted the claim of the plaintiff. Learned Civil Judge (Junior Division), Tarn Taran vide judgment and decree dated 19.12.2007 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Tarn Taran vide judgment and decree dated 21.5.2010. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The dispute is regarding alleged Will dated 18.4.2000. The said Will is registered Will.

Sudershan Kumar Deed Writer has stated that he had scribed the aforesaid Will. He also proved entry thereof made in this register. Tejinder Singh DW4 is attesting witness of the Will. He has also stated that the aforesaid Will was executed by Kartar Singh. This witness also proved endorsement of registration. Defendant no. 1 also himself stepped into witness box. Evidence of scribe and one attesting witness of the Will has Regular Second Appeal No. 4045 of 2010(O&M) -3- been found sufficient by both the courts below to prove the aforesaid Will. Moreover, registration of the Will further adds to its authenticity. The Will, therefore, has rightly been held to be proved. Learned counsel for the appellant contended that Mr. Sukhdev Singh Randhawa, Advocate another witness of the Will gave affidavit Ex. P19 affirming that the Will was never executed before him. However, Sukhdev Singh Randhawa has not been examined as witness by the plaintiff and consequently, his affidavit Ex.

P19 cannot be used as evidence against the defendants who had no opportunity to cross-examine him regarding the contents of his affidavit. In fact, the said affidavit also appears not to have been proved. One Clerk of Advocate appeared as witness. He stated that he was working as Clerk with Mr. BS Bath, Advocate since deceased. The Clerk further stated that Mr. BS Bath had identified deponent Sukhdev Singh Randhawa on the affidavit. Thus, the Clerk witness simply proved identification of deponent Sukhdev Singh Randhawa by B.S. Bath on the affidavit. However, the Oath Commissioner who attested the said affidavit has not been examined as witness nor there is any other evidence to depict that the said affidavit was affirmed by Sukhdev Singh Randhawa, Advocate. In any event, even if the said affidavit is proved to have been affirmed by the said deponent, it cannot be read in evidence because the deponent did not appear as witness to afford opportunity of cross-examination to the defendants to test the veracity of the contents of the affidavit.

Learned counsel for the appellant contended that there are suspicious circumstances surrounding the Will. It was pointed out that name of defendant no. 5 Paramjit Kaur has been mentioned as Baljit Kaur in Regular Second Appeal No. 4045 of 2010(O&M) -4- the Will. Reliance has been placed on judgment of Supreme Court in Kartar Kaur and Anr. Versus Milkho & Ors, 1997(1) Civil Court Cases 153 (SC) to contend that the testator would not have stated wrong name of his daughter. The contention cannot be accepted. Hardev Singh defendant no. 1 has explained that Paramjit Kaur was also known as Baljit Kaur as mentioned in the Will. Even otherwise, if Hardev Singh had fabricated the Will, he would not have mentioned wrong name of his own sister. It cannot be said that Hardev Singh was not aware of the name of his sister. Learned counsel for the appellant contended that since the Will was prepared hurriedly, the name of defendant no.

5 was written wrongly in the Will. The contention is untenable because there was no hurry for preparing the Will. Defendant no. 1 had all the time at his disposal to prepare Will, if he was to fabricate the same. Moreover, Will was scribed and executed a day prior to its registration and it would also depict that there was no hurry in preparing the Will. At the top of it, the Will is not one sided in favour of defendant no. 1. On the other hand, there is distribution of property in favour of plaintiff and defendant no. 1 and their mother. Moreover, all the suit properties have not been bequeathed under the Will. It is, thus, manifest that the Will has not been fabricated by defendant no. 1 and is rather genuine one because if defendant no. 1 had to fabricate the Will, he would not have given any share in the property to the plaintiff. Both the courts below after appreciating the evidence have come to concurrent finding against the appellant.

The said finding is supported by cogent reasons recorded by the courts below. Consequently, Regular Second Appeal No. 4045 of 2010(O&M) -5- the said finding cannot be said to be perverse or illegal warranting interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is devoid of any merit and is accordingly dismissed. October 14, 2010 'dalbir' ( L.N. Mittal ) Judge