- (1.) The regular second appeal is against the judgment and decree dated 10.03.2010 passed by Additional District Judge, Moga whereby the suit filed by plaintiff/appellant has been dismissed by holding that the will dated 21.05.1962 is genuine and does not suffer from any suspicious circumstances Gurdial Kaur-plaintiff/appellant filed a suit for declaration on 15.10.2001 that she was owner of land measuring 24 kanals 16 marlas being 1/4 th share of the land measruing 99 knalas 6 marlas, being legal heirs of deceased Bachan Singh as fully detailed in the head note of the plaint and mutation No. 6997 regarding the inheritance of Bachan Singh in favour of defendant Nos. 1 and 2 is illegal, null and void.
(2.) The suit was contested by the defendants on the ground of being time barred as mutation was sanctioned on 01.08.1979. This mutation was sanctioned in their favour by virtue of registered sale deed dated 21.05.1962 executed in their favour by Bachan Singh, who died on 01.05.1977. The plaintiff has been fully aware of this fact and never made any objection before the revenue authorities at the time of sanction of mutation on 01.08.1979. The trial Court decreed the suit of the plaintiffs on two grounds. (1) The will dated 21.05.1962 had not been duly proved by the defendants as per Secton 68 of the Indian Evidence Act, 1872 and Section 63 of the Indian Succession Act. The requirement of law is that the will has to be attested by two or more witnesses and each of whom has seen the testator sign or affix his mark to the will, in the presence and by the direction of the testator. At least one attesting witness is required to be examined for the purpose of execution of the will. The will was sanctioned by the testator with his free will and at that time he was in sound disposing state of mind and understood the nature and effect of the disposition. The witness who appears to prove the will and specifically states that the second witness had also sanctioned in his presence. None of the attesting witnesses could be produced as they had died. Mere registration of the will was not sufficient to dispel the suspicion regarding the validity of the will. The trial Court decreed the suit. (2) The report of the hand writing and finger print expert Anil Kumar Gupta P.W.5/A who appeared as P.W.5 was not accepted by the trial Court as specimen signatures of Bachan Singh on the pronote and receipt were not his admitted signatures. (3). The plaintiffs suit was based on inheritance for which there were no prescribed period of limitation.
(3.) In view of the above three grounds, the trial Court decreed the suit of the plaintiff. However, the learned lower Appellate Court reversed the findings given by the trial Court and held that the will was duly executed and registered and the endorsement of the Sub Registrar was ExD1/A. The will was signed by marginal witness Partap Singh and Munshi Singh Namberdar and was scribed by Lal Chand Kochhar. It was registered under the signatures of Sub Registrar Partap singh Gill. Both the marginal witnesses scribe as well as Honorary Sub Registrar had expired. Amar Singh Gill, Advocate who appeared as D.W.1 had identified the writing and signatures of Lal Chand Kochhar the scribe as well as the signatures of Partap Singh Gill Honorary Sub Registrar who was his relative. Similarly Gurdeep Kaur (D.W.3) identified the signatures of Partap Singh one of the marginal witness of the will.;