Punjab-Haryana High Court
Davinderjit Kashyap vs Bhupinderjit Kashyap And Others on 1 February, 2011
Author: L. N. Mittal
Bench: L. N. Mittal
R. S. A. No. 3182 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : R. S. A. No. 3182 of 2010
Date of Decision : February 01, 2011
Davinderjit Kashyap .... Appellant
Vs.
Bhupinderjit Kashyap and others .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
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Present : Mr. Vijay Lath, Advocate
for the appellant.
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L. N. MITTAL, J. (Oral) :
Plaintiff Davinderjit Kashyap, having failed in both the courts below, has preferred the instant second appeal.
Plaintiff and defendant no.1 are brothers, whereas defendant no.3 is their sister, and defendant no.2 is son of defendant no.1. The dispute relates to property left by Balwant Rai - father of plaintiff and defendants no.1 and 3. Plaintiff alleged that the suit property was ancestral coparcenary property in the hands of Balwant Rai and therefore, he was not competent to execute Will dated 30.08.1996 thereof. It was also alleged that the said Will has been forged and fabricated.
R. S. A. No. 3182 of 2010 2
Defendant no.3 was proceeded ex-parte. On the other hand, defendants no.1 and 2 pleaded that the Will has been duly executed by Balwant Rai. It was denied that the suit property was ancestral coparcenary property. It was pleaded that the suit property was self acquired property of Balwant Rai. Various other pleas were also raised.
Learned Additional Civil Judge (Senior Division), Panchkula, vide judgment and decree dated 27.02.2009, dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Panchkula, vide judgment and decree dated 22.03.2010. Feeling aggrieved, plaintiff has preferred the instant second appeal.
I have heard learned counsel for the appellant and perused the case file.
In so far as plaintiff's averment that the suit property was ancestral coparcenary property is concerned, the same is not proved at all. There is only self-serving bald and oral statement of the plaintiff to prove this fact, which is not sufficient. No documentary evidence has been produced to substantiate this plea. Consequently, it cannot be said that Balwant Rai was not competent to bequeath the suit property.
The next crucial question relates to the execution of Will dated 30.08.1996. The said Will is a registered one. Defendants have examined R. S. A. No. 3182 of 2010 3 Registration Clerk Lekh Ram (DW-1), Deed Writer Kangru Ram Choudhary (DW-2), Advocate Satyavarat - identifier of executant of the Will (DW-3), Puran Chand Sharma - attesting witness (DW-4) and defendant no.1 himself as DW-5. All of them have supported the case of the defendants.
Learned counsel for the appellant very emphatically and repeatedly referred to requirement of Section 63(c) of the Indian Succession Act, 1925 (in short - the Act) relating to mode of attestation of the Will by at least two witnesses. It was contended with vehemence that requirements of the said provision have not been complied with as DW-4 Puran Chand Sharma has not stated that both the attesting witnesses signed the Will in the presence of the testator or that the testator signed the Will in the presence of both the witnesses. Reliance in support of this contention has also been placed on two judgments of Hon'ble Supreme Court namely Janki Narayan Bhoir vs. Narayan Namdeo Kadam reported as 2003 (1) R. C. R. (Civil) 409 and Moonga Devi etc. vs. Radha Ballab reported as 1972 Cur. L. J. 717.
I have carefully considered the aforesaid contention, but find no merit therein.
Learned counsel for the appellant tried to read the statement of DW-4 Puran Chand Sharma in isolation. However, his statement, coupled R. S. A. No. 3182 of 2010 4 with statements of Kangru Ram Choudhary (DW-2), who scribed the Will and Advocate Satyavarat (DW-3), who is also attesting witness of the Will, inasmuch as he identified the executant and signed the Will in his presence, read together, leave no room for doubt that the Will has been proved in accordance with Section 63(c) of the Act. Kangru Ram Choudhary (DW-2) has specifically stated the executant and the witnesses of the Will signed in his presence and in the presence of one another. It may also be added that the Will is registered one and registration of the Will further adds to its authenticity. At the time of registration also, the testator and the attesting witness signed the Will in presence of one another. In the instant case, requirements of Section 63(c) of the Act have been fully complied with. There is concurrent finding by both the courts below to this effect. The said finding is fully justified by the evidence on record and is supported by cogent reasons. There is no reason to disagree with the same. The said finding is not shown to be perverse or illegal in any manner so as to warrant interference in second appeal.
Learned counsel for the appellant also contended that spacing in the Will is a suspicious circumstance. The contention cannot be accepted because scribe of the Will Kangru Ram Choudhary (DW-2) has explained the same. It is thus manifest that requirements of Section 63(c) of the Act have been fully complied with.
R. S. A. No. 3182 of 2010 5
For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine.
February 01, 2011 ( L. N. MITTAL ) monika JUDGE