The High Court
Case Details
(cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:4)(cid:6)(cid:12)(cid:4)(cid:13)(cid:14)(cid:9)(cid:15)(cid:4)(cid:16)(cid:17)(cid:18)(cid:19)(cid:20) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.6143 of 2018 (O&M) Reserved on: 05.03.2025 Pronounced on: 20.03.2025 Sujata Prashar and another Babita Bhanot and others .....Appellants Vs. .....Respondents CORAM:- HON'BLE MR. JUSTICE DEEPAK GUPTA Present:- Mr. Sanjiv Gupta, Advocate for the appellants. Mr. K.S. Dadwal and Ms. Neha Jain, Advocates for the respondents. **** DEEPAK GUPTA, J. Suit for declara"on and permanent injunc"on regarding property in dispute filed by plain"ff - Babita Bhanot (contes(cid:8)ng respondent herein) was decreed by the trial Court of learned Civil Judge (Junior Division), Chandigarh vide judgment dated 21.04.2015. Appeal filed by contes"ng defendants No.1 and 2 (appellants herein) against trial court judgment, was dismissed by the First Appellate Court of learned District Judge, Chandigarh on 29.01.2018. Against the concurrent findings of the Courts below, defendants No.1 and 2 have approached this Court by way of the present Regular Second Appeal. 2. Trial Court record was called. The same has been perused. In order to avoid any confusion, par"es shall be referred as per their status before the learned Trial Court. 3. Dispute pertains to House No.3003, Sector 38-D, Chandigarh, which was admi:edly owned by late Shri Karam Chand, who expired on 02.11.1995. His wife Smt. Sushila had pre-deceased him on 23.05.1995. Late Karam Chand le= behind three natural legal heirs, namely, Sa"nder (son) and two daughters, namely, Manju and Babita. Son Sa"nder expired on 16.09.2002 and he is succeeded by his wife Sujata and daughter Sugandha. RENU 2025.03.20 13:14 I attest to the accuracy and integrity of this document Chandigarh Page No.1 out of 16 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:4)(cid:6)(cid:12)(cid:4)(cid:13)(cid:14)(cid:9)(cid:15)(cid:4)(cid:16)(cid:17)(cid:18)(cid:19)(cid:20) 4. Suit has been brought by one of the daughters of Karam Chand, namely, Babita by impleading Sujata and Sugandha as defendants No.1 and 2; and Manju i.e. another daughter of Karam Chand as defendant No.5. Chandigarh Administra"on through its Administrator; and Estate Officer, U.T. Estate Office, Chandigarh have been impleaded as defendants No.3 and 4. 5.1 Plain"ff claims 1/3rd share in the suit property on the basis of natural succession. It is the case of the plain"ff that a=er his re"rement in 1993, Karam Chand did not shi= to the house in dispute and rather, preferred to stay in the house of his son-in-law, namely, Hari Pal Sharma,
Facts
the husband of defendant No.5- Manju. On the other hand, Sa"nder, the brother of the plain"ff had shi=ed to Chandigarh in 1989-90 and then a=er the vaca"on of the house by the tenant, had started residing in the house in dispute in 1993. It is alleged that rela"ons between Karam Chand and Sa"nder were not cordial. It is also the case of the plain"ff that a=er the death of Sh. Karam Chand, Sa"nder along with his wife visited the plain"ff at Jalandhar, where she was residing with her in-laws and told him that property in dispute was to be transferred in the name of legal heirs of Sh. Karam Chand, as Sh. Karam Chand had le= no Will in favour of any of the heirs. Plain"ff signed on some blank and stamp papers on the asking of her brother suspec"ng no foul play or without doub"ng his integrity. 5.2 It is further the case of the plain"ff that a=er the death of her brother Sa"nder on 16.09.2002 in a train accident, she had gone to Chandigarh to console her sister-in-law - Bhabhi and stayed at Chandigarh "ll Kirya ceremony, who never talked about the issue of the property le= behind by late Sh. Karam Chand. However, in April, 2006, when plain"ff came to Chandigarh, she found her Bhabhi Sujata in Panchkula at her parental home and when she confronted her about the arrangements made regarding the house in dispute, brother of Sujata appeared on the scene and while insul"ng her, told that house had been transferred in the name of defendants No.1 and 2, with which plain"ff has no concern. RENU 2025.03.20 13:14 I attest to the accuracy and integrity of this document Chandigarh Page No.2 out of 16 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:4)(cid:6)(cid:12)(cid:4)(cid:13)(cid:14)(cid:9)(cid:15)(cid:4)(cid:16)(cid:17)(cid:18)(cid:19)(cid:20) 5.3 Suspec"ng some foul play, plain"ff represented to defendant No.4 for furnishing the documents pertaining to the house in dispute but in vain. Ul"mately, the plain"ff was constrained to file Civil Writ Pe""on No.11870 of 2006 before this Court for a direc"on to defendant No.4 to supply the informa"on as sought by her regarding disputed house. It is only a=er the orders passed by the High Court that the plain"ff came to know about the fraud and deceit perpetrated by her late brother Sa"nder Prashar and subsequently, by defendants No.1 and 2, as it was found that late Sa"nder Prashar in connivance with his in-laws family had forged a Will dated 01.06.1995, in which Tilak Raj Sharma, the father-in-law of Sa"nder Prashar was shown to be a witness to the Will. The Will was shown to have been executed on 23.05.1995 i.e. hardly eight days a=er the death of the mother of the plain"ff and when the en"re family was in grief. There was no men"on of the two daughters in the Will. The said Will was kept concealed by late Sh. Sa"nder Prashar for about four years. Plain"ff alleged the said Will to be forged and fabricated document and as such, sought necessary declara"on and injunc"on. 6. Defendants No.1 and 2 contested the suit by submiIng that plain"ff as well as defendant No.5 were well aware about the Will dated 01.06.1995 since beginning. According to them, a=er the death of Sh. Karam Chand Sharma, the house in ques"on was transferred in the name of
Legal Reasoning
aforesaid expert, we find that he had taken into account the said factors and specifically no"ced the basic characteris"cs of the disputed and standard handwri"ng of signatures. The points of dissimilari"es have been amply described with reasons. On the whole, the report is well reasoned and therefore, is liable to be accepted. It may be that deceased Karam Chand Sharma as per record was not signing in the same fashion. He is appending signatures as “K.C. Sharma”; “Karam Chand”; or “Karam Chand Sharma”. However, the material provided for comparison to expert in the circumstances of the case was sufficient. I have also myself carried out comparison of the disputed signatures of Karam Chand on the Will in ques"on with the standard signatures and find that apparently these do not match.” 23. Not only above, when Mr. Sa"nder Prashar applied to the Estate Officer for transfer of the property in his name on the basis of Will of Sh. Karam Chand, it was no"ced by the Estate Officer that signatures of Sh. Karam Chand on the Will were not resembling with his signatures in their record. In this regard, it would be relevant to reproduce the observa"ons made by the First Appellate Court made in para Nos.27 and 28 of its judgments which reads as under:- “27. The further argument was relying upon the said affidavits of the other heirs, the Estate Officer a=er following the due procedure allowed the transfer of the property in dispute in the name of Sa"nder Prashar on the basis of the Will of Karam Chand, vide order dated 9.11.1999. It is ma:er of record that defendant Estate Officer raised objec"on to the applica"on of Sa"nder Prashar for seeking transfer of the property in dispute and two le:ers dated 9.7.1999 and 31.8.1999 Ex.PW5/A and Ex.PW5/B had been wri:en for calling upon him to prove the authen"c record of signatures of Karam Chand because his signatures on the Will in ques"on were not resembling with the signatures in their record. But Sa"nder Prashar instead of complying with the direc"ons of the Estate Officer produced his indemnity bond for allowing the transfer. In such an eventuality the Estate Officer was duty bound to ask Sa"nder Prashar to approach the Civil Court RENU 2025.03.20 13:14 I attest to the accuracy and integrity of this document Chandigarh for seeking declara"on on the basis of Will in ques"on. Page No.11 out of 16 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:4)(cid:6)(cid:12)(cid:4)(cid:13)(cid:14)(cid:9)(cid:15)(cid:4)(cid:16)(cid:17)(cid:18)(cid:19)(cid:20) 28. It may be that PW.6 Sanjay Vats from Estate Office, U.T., Chandigarh Administra"on, made statement that all the necessary formali"es of furnishing the requisite documents had been completed by Sa"nder Prashar before allowing the transfer of the property in dispute from the name of Karam Chand Sharma to the name of Sa"nder Prashar on the basis of Will in ques"on. But we find that once the document of "tle i.e. unregistered Will in ques"on had been no"ced to be doubPul by the Estate Officer and the applicant Sa"nder Prashar was asked to furnish authen"c record of signatures of executant, it was inappropriate on the part of Estate Officer to have accepted simply the indemnity bond for allowing the transfer. Even the other legal heirs could be called in person for verifica"on. But no such legally permissible modes had been adopted by the Estate Officer and the last recourse was also not followed by asking the applicant to get the "tle declared from civil Court. It, therefore, cannot be said that plain"ff Babita Bhanot was estopped from denying the execu"on of Will in ques"on. The argument is accordingly repelled.” 24. It is, thus, clear from the afore-said facts and circumstances that it is highly doubPul that the Will Ex.D-3 carried the signatures of Sh. Karam Chand. This fact was no"ced not only by the Estate Officer, Chandigarh, when applica"on for transfer of the property was made by Sa"nder Prashar. Even the expert examined by the plain"ff proved that signatures of Sh. Karam Chand did not match with the disputed signatures on the Will Ex.D-3. DW-2 Nirdesh Kumar Punj, who has been long standing colleague of Sh. Sa"nder Prashar, obliged his friend by appending his signatures on the Will and the other a:es"ng witness was Tilak Raj Sharma, the father-in-law of Sh. Sa"nder Prashar. In these circumstances, the Courts below have rightly held that the Will in ques"on was not proved as per the legal requirements of law. 25. Apart from above, the Courts below have rightly no"ced numerous suspicious circumstances surrounding the Will, which could not be dispelled by the defendants-appellants. As has come in the tes"mony of DW-1 Sujata, the beneficiary i.e. Sh. Sa"nder Prashar as well as she (Sujata) RENU 2025.03.20 13:14 I attest to the accuracy and integrity of this document Chandigarh Page No.12 out of 16 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:4)(cid:6)(cid:12)(cid:4)(cid:13)(cid:14)(cid:9)(cid:15)(cid:4)(cid:16)(cid:17)(cid:18)(cid:19)(cid:20) were present at the "me of the execu"on of the Will. Although presence of beneficiary in itself cannot be a ground to discard the Will, but in the facts and circumstances of the present case, presence of the beneficiary is highly suspicious considering the fact that both the a:es"ng witnesses are either a close rela"ve or a dear friend of Sh. Sa"nder Prashar, inasmuch as Tilak Raj Sharma was the father- in-law of Sh. Sa"nder Prashar and Nirdesh Kumar Punj was his friend/colleague. 26. DW-1 Sujata claims in her tes"mony that plain"ff as well as defendant No.5 were also present in the house, when the Will was executed. This statement is absolutely not believable. Had this been the fact, the defendants would have certainly men"oned it in their wri:en statement. However, the said statement is absolutely beyond pleadings. At no point of "me, it was pleaded that the Will was executed in the presence of the plain"ff or defendant No.5. 27. Another suspicious circumstance as already no"ced is that there is no evidence as to who had typed the Will. There is no evidence as to who got it typed, from where it was got typed and whether it was read over and explained to the testator Sh. Karam Chand or not. 28. The "ming of the Will is also very important, inasmuch as wife of Sh. Karam Chand Sharma i.e. mother of plain"ff and Sh. Sa"nder Prashar had expired on 23.5.1995. The religious rites were to be completed up to 4.6.1995. During the mourning period of 13 days, normally the family members remain at home and rela"ons come to express condolences. In these circumstances, it was quite unusual that during mourning period, the executant could have thought of execu"ng the Will by remaining absent from the religious ceremonies. 29. Further, though the Will is normally executed to change the normal course of succession and it is also not unusual to ignore married daughters, who are well se:led in life, but there must be some men"on in the Will about all the children. However, perusal of the Will Ex.D-3 would RENU 2025.03.20 13:14 I attest to the accuracy and integrity of this document Chandigarh Page No.13 out of 16 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:4)(cid:6)(cid:12)(cid:4)(cid:13)(cid:14)(cid:9)(cid:15)(cid:4)(cid:16)(cid:17)(cid:18)(cid:19)(cid:20) reveal that there is not even any whisper that the testator had two daughters or they were married and happily se:led. So much so, even there is no men"on of the wife of the executant, who had expired just eight days prior to the alleged execu"on of the Will. 30. It has also been rightly no"ced by the Courts below that as per the recital of the Will Ex.D-3, beneficiary Sh. Sa"nder Prashar was residing with the testator and looking a=er him. However, this is factually incorrect, as it has come in evidence led by the plain"ff that the executant and his wife had been residing in H. No. 3511, Sector 22, Chandigarh, which had been allo:ed to Sh. Hari Pal Sharma, the husband of defendant No.5 and a=er re"rement of Sh. Karam Chand Sharma, it is Sa"nder Sharma and his family who had shi=ed to the disputed house i.e. No.3003, Sector 38D West, Chandigarh. 31. The doubPul signatures of testator - Sh. Karam Chand Sharma had been no"ced by the Estate Officer as has already been pointed out and it has come in evidence through the expert examined by the plain"ff that signature on the Will did not tally with the standard signatures of Sh. Karam Chand Sharma. 32. Above discussed suspicious circumstances have not been sa"sfactorily explained by the appellants, who are the propounder of the WILL in ques"on. 33. Appellants - defendants mainly rely upon the affidavits dated 26.05.1999 Ex.D-1 and D-2 of plain"ff and defendant No.5 so as to claim that they had given ‘No Objec"on’ to transfer the suit property in the name of their brother - Sa"nder Prashar on the basis of Will of their father - Sh. Karam Chand Sharma and, therefore, the plain"ff is estopped from denying the execu"on of the Will. However, as pleaded by the plain"ff and as has come in her tes"mony, her signatures and also that of defendant No.5 were obtained on blank papers by misrepresenta"on of facts by Sh. Sa"nder Prashar and therea=er, these papers were wrongly used to prepare the RENU 2025.03.20 13:14 I attest to the accuracy and integrity of this document Chandigarh Page No.14 out of 16 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:4)(cid:6)(cid:12)(cid:4)(cid:13)(cid:14)(cid:9)(cid:15)(cid:4)(cid:16)(cid:17)(cid:18)(cid:19)(cid:20) affidavits, which were not even sworn by them. The papers were misused by Sa"nder Prashar to get the suit property transferred in his name from the Estate Officer without any no"ce to the plain"ff and as such, doctrine of estoppel is not applicable in the case. 34. To rebut the case of the plain"ff in this regard, the defendants have examined Sh. P.K. Dass, Notary Public as DW-3, who had allegedly iden"fied the plain"ff and defendant No.5 - Manju Sharma for swearing the affidavits Ex.D-1 and D-2. However, tes"mony of this witness would reveal that he did not know either plain"ff Babita Bhanot or defendant No.5 Manju Sharma personally. It is not in his tes"mony that he had asked for the iden"ty proofs of Manju and Babita Bhanot. So much so, he admi:ed specifically in his cross examina"on that he did not ask for any such documents before iden"fying them. Most importantly, though DW-3 claims to be Notary Public but he was not maintaining any register for entering the documents notarized by him so as to obtain the signatures of executant of any document against the relevant entry. 35. It has been rightly observed by the First Appellate Court that though the above witness tried to absolve his liability by claiming that Execu"ve Magistrate had ul"mately a:ested the affidavits and he was to ensure the iden"fica"on but endorsement of a:esta"on by the Execu"ve Magistrate under the affidavits was quite clear that same had been a:ested by him as per iden"fica"on. No official has been examined from the Office of the Execu"ve Magistrate so as to prove that the affidavits Ex.D-1 and D-2 were sworn by the plain"ff and defendant No.5 in his presence. Had the plain"ff been aware about the transfer of the property in the name of Sa"nder Prashar based upon their affidavit, there was no necessity for her to approach this High Court to give direc"ons to the Estate Officer to supply the necessary documents regarding the house in dispute. It is the admi:ed case of the par"es and also that of the defendant No.4- Estate Officer, U.T. Chandigarh that no no"ce was issued to the sisters of Sa"nder Prashar before transferring the property in dispute in the name of Sh. Sa"nder RENU 2025.03.20 13:14 I attest to the accuracy and integrity of this document Chandigarh Page No.15 out of 16 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:4)(cid:6)(cid:12)(cid:4)(cid:13)(cid:14)(cid:9)(cid:15)(cid:4)(cid:16)(cid:17)(cid:18)(cid:19)(cid:20) Prashar from that of Sh. Karam Chand Sharma. 36. In view of en"re facts and circumstances as above, this Court holds that no illegality has been commi:ed by any of the Courts below in discarding the Will, as it is not duly proved on record. Besides, there are numerous suspicious circumstances surrounding the Will, which could not be dispelled by the propounder of the Will. 37. Since plain"ff sought necessary declara"on of "tle to the property in dispute by way of the natural succession, as such it has been rightly held that there is no limita"on for claiming declara"on on the basis of "tle unless defendants plead adverse possession. Apart from this, clear case of the plain"ff is that a transfer of property through Estate Officer had been obtained by Sa"nder Prashar by playing fraud and that plain"ff came to know about the said fraud only a=er geIng the informa"on from defendant No.4 in August, 2006 as per the direc"ons of the High Court. As such, the Courts below have rightly held that the suit was not barred by "me. 38. On account of the en"re discussion as above, this Court does not find any ground whatsoever to interfere in the well-reasoned concurrent findings of facts as recorded by the Courts below. There is no scope for interference. There is neither any illegality nor any perversity in the findings, as there is neither any mis-apprecia"on nor any misreading of evidence. Learned counsel for the appellants could not point out that any material evidence has been ignored by the Courts below for the purpose of considera"on. As such, holding the present appeal to be devoid of any merit, the same is hereby dismissed. March 20, 2025 renu (DEEPAK GUPTA) JUDGE Whether Speaking/reasoned Yes/No Yes/No Whether Reportable RENU 2025.03.20 13:14 I attest to the accuracy and integrity of this document Chandigarh Page No.16 out of 16 pages
Arguments
Sh. Sa"nder Prashar on 09.11.1999. It is contended that plain"ff as well as defendant No.5 had given their affidavits dated 26.05.1999 in favour of their real brother Sh. Sa"nder Prashar and the said affidavits were duly a:ested by the Execu"ve Magistrate in their presence and, therefore, there is no ques"on of concealment of the Will of Shri Karam Chand. A=er the death of Sh. Sa"nder Prashar, the suit property was transferred in the name of defendants No.1 and 2. Denying any fraud or fabrica"on in the Will and controver"ng all the allega"ons of the plain"ff, defendant No.1 and 2 prayed for dismissal of the suit. 7. Defendants No.3 and 4 in their separate wri:en statement also RENU 2025.03.20 13:14 I attest to the accuracy and integrity of this document Chandigarh Page No.3 out of 16 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:4)(cid:6)(cid:12)(cid:4)(cid:13)(cid:14)(cid:9)(cid:15)(cid:4)(cid:16)(cid:17)(cid:18)(cid:19)(cid:20) supported the case of defendants No.1 and 2 to the effect that it is on the basis of the separate affidavits dated 26.05.1999 duly a:ested by the Execu"ve Magistrate, Chandigarh given by plain"ff and defendant No.5 to the effect that they did not have objec"on in transfer of the house in the name of their real brother Sa"nder Sharma on the basis of Will of Shri Karam Chand that the house was transferred in the name of Sh. Sa"nder Prashar a=er comple"ng all necessary formali"es; and that a=er the death of Sa"nder Prashar, the house was transferred in the name of defendant No.1 and 2 being the legal heirs of Sa"nder Prashar. 8. Defendant No.5 - Manju Sharma filed separate wri:en statement admiIng the en"re claim of the plain"ff. 9. Necessary issues were framed. Evidence produced by the par"es was taken on record. Trial Court held that Will propounded by the defendants was not proved and was surrounded by various suspicious circumstances and as such, discarded the Will. Consequently, the suit was decreed by declaring the plain"ff to be en"tled to 1/3rd share in the suit property on the basis of natural succession. Defendants No.1 and 2 were also restrained from aliena"ng, transferring or disposing of the suit property in any manner. Defendants No.3 and 4 were restrained from issuing any NOC in favour of any person. The said judgment dated 21.4.2015 passed by trial court was upheld by learned First Appellate Court of District Judge, Chandigarh, in the appeal filed by the defendants No.1 and 2 i.e. appellants herein, as their appeal was dismissed vide judgment dated 29.01.2018. 10. Assailing the aforesaid concurrent findings of facts as recorded by the Courts below, it is contended by the learned counsel for the appellants - defendants No.1 and 2 that both the Courts below have failed to appreciate the evidence on record in the right perspec"ve. It is ignored by the Courts below that Will Ex.D-3 dated 1.6.1995 of Sh. Karam Chand was duly proved by the tes"mony of DW-2 Nirdesh Kumar Punj, one of the RENU 2025.03.20 13:14 I attest to the accuracy and integrity of this document Chandigarh Page No.4 out of 16 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:4)(cid:6)(cid:12)(cid:4)(cid:13)(cid:14)(cid:9)(cid:15)(cid:4)(cid:16)(cid:17)(cid:18)(cid:19)(cid:20) a:es"ng witnesses to the Will. Not only this, based upon affidavits Ex.D-1 and D-2 dated 26.5.1999 of plain"ff and defendant No.5, duly a:ested by the Execu"ve Magistrate, Chandigarh, the house in ques"on was transferred in the name of Sh. Sa"nder Prashar on the basis of Will of Sh. Karam Chand. A=er the death of Sa"nder Prashar, the house was then transferred in favour of defendants No.1 and 2, being the legal heirs of said Sa"nder Prashar. Plain"ff did not raise any objec"on "ll her brother Sh. Sa"nder Prashar was alive and rather, filed the present suit in February, 2007 and so, suit is clearly barred by limita"on. It is further the conten"on that plain"ff is estopped from filing the present suit on account of her own act and conduct. All these aspects have been ignored by the Courts below. Prayer is made to set aside the impugned judgments and decrees as passed by the Courts below and to dismiss the suit of the plain"ff by allowing this appeal. 11. On the other hand, learned counsel for the contes"ng respondent-plain"ff contends that the Courts below have correctly appreciated the en"re evidence on record and that there is no scope for interference in the concurrent findings of facts. Learned counsel contends that the defendants could not dispel the suspicious circumstances surrounding the Will. It is pointed out that plain"ff has duly explained as to how her signatures were obtained by her brother by foul play. Not only this, one of the a:es"ng witnesses to the Will namely, Nirdesh Kumar, examined by the defendant could not prove necessary ingredients required to prove validity of a Will. It is also pointed out that when the Will was produced before the Estate Officer Chandigarh, he had found that the signatures of Sh. Karam Chand did not match with his signature available on the record and had asked Sa"nder Prashar to produce necessary documents. It is contended that the Courts below have rightly held that once Estate Officer had doubted the signatures of Sh. Karam Chand - the testator of the Will, it was required for him to ask Sa"nder Prashar to obtain necessary decree from the Court regarding the same. With these RENU 2025.03.20 13:14 I attest to the accuracy and integrity of this document Chandigarh Page No.5 out of 16 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:4)(cid:6)(cid:12)(cid:4)(cid:13)(cid:14)(cid:9)(cid:15)(cid:4)(cid:16)(cid:17)(cid:18)(cid:19)(cid:20) submissions, learned counsel prayed for dismissal of the appeal. 12. This Court has considered the submissions of both the sides and have appraised the en"re evidence on record thoroughly and carefully, including the Trial Court record. 13. Simply put, plain"ff claims 1/3rd share in the suit property of her father on the basis of natural succession; whereas, defendants No.1 and 2 claim exclusive ownership to the suit property on the basis of the Will dated 01.06.1995 of Sh. Karam Chand in favour of Sh. Sa"nder Prashar, their predecessor, i.e. the brother of the plain"ff and defendant No.5. Both the Courts have discarded the Will propounded by the defendants and have held the plain"ff to be en"tled to 1/3rd share on the basis of natural succession. 14. The most material issue involved in the case is as to whether the Will dated 1.6.1995 (Ex.D3) is proved or not?. It may be noted that as per legal posi"on, the mode of proving a WILL does not ordinarily differ from that of proving any other document except as to the special requirement of a:esta"on prescribed in the case of a WILL by Sec"on 63 of the Indian Succession Act, which reads as under:- "63. Execu=on of unprivileged wills. - Every testator, not being a soldier employed in an expedi"on or engaged in actual warfare) or an airman so employed or engaged or a mariner at sea, shall execute his will according to the following rules: (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direc"on. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the wri"ng as a will. (c ) The will shall be a:ested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other RENU 2025.03.20 13:14 I attest to the accuracy and integrity of this document Chandigarh Page No.6 out of 16 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:4)(cid:6)(cid:12)(cid:4)(cid:13)(cid:14)(cid:9)(cid:15)(cid:4)(cid:16)(cid:17)(cid:18)(cid:19)(cid:20) person sign the will, in the presence and by the direc"on of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator but it shall not be necessary that more than one witness be present at the same "me and no par"cular form of a:esta"on shall be necessary." 15. Apart from above, Sec"on 68 of the Evidence Act is quite relevant regarding proving the execu"on of a WILL. This reads as under: "68. Proof of execu=on of document required by law to be aCested. -- If a document is required by law to be a:ested, it shall not be used as evidence un"l one a:es"ng witness at least has been called for the purpose of proving its execu"on, if there be an a:es"ng witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an a:es"ng witness in proof of the execu"on of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registra"on Act, 1908 (16 of 1908), unless its execu"on by the person by whom it purports to have been executed is specifically denied.” 16. The conjoint reading of above provisions make it quite clear that at least one out of the two a:es"ng witnesses must be called to prove due execu"on of the WILL. Further, it is required for the a:es"ng witness to prove that he had seen the testator sign or affix his mark to the WILL in his presence; or that he received from the testator a personal acknowledgment of his signature or mark of the signature of such other person and each of the witnesses shall sign the WILL in the presence of testator. Reliance can be placed on Pentakota Satyanarayana Vs. Pentakota Seetharatnam 2006(1) C.C.C.563, wherein it has been held by Hon'ble Supreme Court that to prove due execu"on of Will, a:es"ng witness must state that each of the two witnesses has seen the executor sign or affix his mark to the instrument or has seen some other person sign the instrument in his presence and by the direc"on of the execu"on. Witness should further state that each of the RENU 2025.03.20 13:14 I attest to the accuracy and integrity of this document Chandigarh Page No.7 out of 16 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:4)(cid:6)(cid:12)(cid:4)(cid:13)(cid:14)(cid:9)(cid:15)(cid:4)(cid:16)(cid:17)(cid:18)(cid:19)(cid:20) a:es"ng witness signed the instrument in the presence of the executant. Hon'ble Supreme Court held that these are the ingredients of a:esta"on and they have to be proved by the witnesses. 17. Further, it is the se:led proposi"on of law that it is the propounder of the Will, who has to prove its due execu"on. Besides, mere proving the signatures of the testator on the Will is not sufficient. Reference in this regard can be made to Ganpat Vs. Siri Chand 1992(1) LJR 252 and Janki Narayan Bhoir Vs. Narayan Namdeo Kadam 2003(2) LJR 646, wherein it has been held that due and valid execu"on of the Will cannot be proved by simply proving that the signatures on the Will was that of the testator. It must be proved that a:esta"ons were also made properly as required by clause (c ) of Sec"on 63 of the Succession Act, 1925. 18. In the light of abovesaid legal posi"on, it is required to be seen as to whether the due execu"on of the Will dated 1.6.1995 set up by defendants, has been proved in this case or not. 19. Perusal of the Will dated 1.6.1995 Ex.D-3 relied by the defendants would reveal that it is purported to be executed by Karam Chand. It is one page typed document. Tilak Raj Sharma and Nirdesh Kumar Punj are shown to be the a:es"ng witnesses. There is no men"on as to who had scribed/typed the Will. In order to prove this Will, defendants have relied upon the tes"mony of DW-2 Nirdesh Kumar Punj, one of the a:es"ng witnesses. Another a:es"ng witness, namely, Tilak Raj Sharma, who is admi:edly the father-in-law of Sa"nder Prashar i.e. father of the appellant- defendant Sujata has not been examined. 20. The tes"mony of DW-2 Nirdesh Kumar Punj has been rightly ignored by the Courts below, as he has not been found to be reliable witness and it is found that his tes"mony fall short of proving the legal requirements of the Will. Though DW-2 Nirdesh Kumar Punj says that the Will dated 01.06.1995 Ex.D-3 was signed by executant in his presence and also in the presence of another a:es"ng witness Tilak Raj and that they had RENU 2025.03.20 13:14 I attest to the accuracy and integrity of this document Chandigarh Page No.8 out of 16 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:4)(cid:6)(cid:12)(cid:4)(cid:13)(cid:14)(cid:9)(cid:15)(cid:4)(cid:16)(cid:17)(cid:18)(cid:19)(cid:20) a:ested the Will in the presence of the executant but it has come in his evidence that he did not have the knowledge prior to the going to the house of the executant that Will was to be executed and the typed Will was with the executant. He did not know as to who had typed the Will. The said Will was neither read over to the witness nor it was read over by the witnesses and he was not aware about its contents. It was rightly observed by the First Appellate Court that since the Will in ques"on was not hand wri:en of the executant, therefore, it was necessary that contents of the Will are read over and explained to the executant before appending his signatures. It is not in the tes"mony of DW-2 Nirdesh Kumar Punj that executant had admi:ed, before appending his signatures that the document had been got scribed by him with his free will and as such, the contents of the Will were required to brought to the no"ce of the executant and the a:es"ng witnesses. It has been rightly observed further that neither scribe of the Will in ques"on has been examined nor he is named. The Will is silent as to who had typed the Will. There is no men"on as to from where it was typed and who got it typed. 21. DW-1 - Sujata, one of the defendants says that she was also present, when the Will was executed and that she had seen Karam Chand Sharma wri"ng the Will but her said tes"mony is absolutely not believable, inasmuch as the Will Ex.D-3 is not hand-wri:en by Sh. Karam Chand Sharma and rather, it is a typed Will. It is not in the tes"mony of DW-1 Sujata that she had seen Sh. Karam Chand typing the Will. She also says that her role was only serving tea, biscuits etc. and that she did not know anything about the contents of the Will. In these circumstances, it has been rightly held by the Courts below that the tes"mony of either DW-2 Nirdesh Kumar Punj or that of DW-1 Sujata is insufficient to prove the validity of the Will. 22. The most important factor as no"ced by the Courts below is regarding the signatures of the testator itself on the Will. In this regard, it would be relevant to reproduce the observa"ons made by the First Appellate Court in para No.22 of its judgment:- RENU 2025.03.20 13:14 I attest to the accuracy and integrity of this document Chandigarh Page No.9 out of 16 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:4)(cid:6)(cid:12)(cid:4)(cid:13)(cid:14)(cid:9)(cid:15)(cid:4)(cid:16)(cid:17)(cid:18)(cid:19)(cid:20) “It was also pointed out that the signatures of the executant on the Will Ex.D3 did not tally with the standard signatures of the executant in the service record and record of the Estate Office. The argument of learned counsel for appellants was that direct evidence of DW.2 Nirdosh Kumar Punj regarding execu"on of Will in ques"on was to prevail and the tes"mony of handwri"ng expert being only opinion evidence given at the instance of the party engaging him could not be a:ached much weight. The further argument was that the standard signatures of the executant had been made at different intervals of "me and therefore, there was bound to be varia"ons and could not be said to be sufficient material for comparison. As already pointed out DW.2 Nirdosh Kumar simply stated that signatures were put by the executant, on the text of Will, which was already typed and not even read over in his presence and that he had no knowledge before reaching the house of executant that Will was to be executed. So much so when confronted with the standard signatures of Karam Chand Sharma on the documents Ex.P1 to Ex.P9 which was part of his personal file of office record of his department and also on documents Ex.PW4/2 to Ex.PW4/7 which were from the record of Estate Office, U.T., Chandigarh, the witness stated that he could not iden"fy the said signatures. The said documents bore the standard signatures of Karam Chand deceased and have been proved by the officials of the department to have been appended by Karam Chand. It may be that DW.2 Nirdosh Kumar is not hand wri"ng expert but his not iden"fying the standard signatures of deceased Karam Chand certainly discredits his tes"mony. On the other hand, plain"ff examined PW Devinder Parshad, Handwri"ng Expert who carried out the comparison of ques"oned signatures of Karam Chand Sharma on Will with his standard signatures and vide his report Ex.PW7/A and photographs Ex.PW7/B to Ex.PW7/B6 opined that they did not tally. It may be that handwri"ng expert had been engaged by the plain"ff but the report and reasons furnished in support of the report have to be considered for accep"ng or rejec"ng the report. It may be that standard signatures taken for comparison had been made at different intervals of "me and it is normal that varia"ons are there naturally in the signatures due to "me gap. However, if we scru"nize the report of the RENU 2025.03.20 13:14 I attest to the accuracy and integrity of this document Chandigarh Page No.10 out of 16 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:4)(cid:6)(cid:12)(cid:4)(cid:13)(cid:14)(cid:9)(cid:15)(cid:4)(cid:16)(cid:17)(cid:18)(cid:19)(cid:20)