AVTAR KAUR Vs. BANTA

JUDGEMENT

(1.) THIS Regular Second Appeal had been filed by the unsuccessful plaintiffs now represented by his legal representatives and has arisen out of the following facts :- On Ram Chand was owner in possession of land measuring 16 kanals 14 marlas being 1/4th of the total land measuring 66 kanals 16 marlas situated in the revenue area of village Garhi Matton, District Hoshiarpur. The original plaintiffs were the daughters and sons of the deceased sister of Ram Chand, Premi. Ram Chand expired on 13th October, 1996 leaving a Will dated 23rd July, 1966, bequeathing his share of the property to the defendant/respondent Batna (since deceased). The plaintiffs filed a suit for possession basing their claim as being the only heirs of the deceased under the Hindu Succession Act, 1956. Batna contested the suit and claimed that a Will had been executed in his favour as he was a collateral of the deceased and also on account of the fact that he had been looking after him before his death. It has also been pleaded that the Will had been got registered on 5th January, 1967 after the death of the deceased and that mutation has also been entered on that account.

(2.) ON a consideration of the pleadings of the parties, the following issues were framed by the trail Court :-

(3.) I have perused the findings of the Courts below with the help of the learned counsel for the parties. It will be seen a three fold challenge had been made to the validity of the Will. It has been highlighted that as the Will was not scribed by a Licensed Deed Writer nor registered during the life time of the testator, and no reasons had been given as to why the legal heirs i.e. children of Premi had been excluded from succession and that Batna the legatee had been present at the time of its execution, were all factors, which cast a suspicion on its validity. The Courts below in their respective judgments have rightly held that the mere fact that the Will had not been registered by the testator or that it was registered after the death of the testator, was no ground to hold it to be a suspicious document. It is true that the Courts below have recorded a finding that the plaintiffs were the children of Premi-deceased sister of Ram Chand-testator. It has, however, equally come in evidence that Ram Chand and Batna and grand children of two brothers and, therefore, closely related. The lower Appellate Court has recorded a finding, and to my mind correctly, that as Premi had pre-deceased her brother Ram Chand, it was not unnatural that he (Ram Chand) had decided to give his property to his cousin in preference to the children of his sister. The document Ex.D1 i.e. the Will in question has also been perused. It has been duly proved by the scribe Paushori Ram-DW3 and two marginal witnesses namely Swarna-DW4 and Gurbachan Singh-DW5, they being the Lambardar adn Sarpanch of the village of the testator respectively. It has been held in Deokali (Smt.) v. Nand Kishore 1996 H.L.R. 516 : 1996(2) RRR 678 (SC) and Deity Pattabhiramaswamy v. S. Hanymayya, A.I.R. 1959 SC 57 (the latter case specifically pertaining to a Will) that it is not open to the High Court to interfere in Second Appeal on concurrent findings of fact. As already mentioned above, both the Courts i.e. the trial Court and the lower Appellate Court have found the Will in question to be a genuine one. There is, thus, no merit in this appeal. Dismissed. No costs.