Rajesh Bindal, J. - (1.) ONE of the defendants is before this court impugning the judgments and decrees of the courts below, whereby the suit filed by respondent No. 1 -plaintiff for declaration to the effect that he is co -sharer in the property in dispute was decreed.
(2.) IN the case in hand, estate of Nasib Kaur is in question. She died on 5.6.1993 survived by three sons and three daughters. Prior to her death, the entire property owned by her husband -Chhaja Singh was divided amongst all the legal heirs, namely, Nasib Kaur, three sons and three daughters equally, i.e., 1/7th share each. In the case in hand, the issue is regarding 1/7th share of the property inherited by Nasib Kaur. In the suit filed by respondent No. 1 -plaintiff on 19.7.2000, it was claimed that he being one of the legal heirs is entitled to 1/6th share of the property left by Nasib Kaur -deceased, she being survived by three sons and three daughters. The suit was contested by the appellant only as Amarjit Singh -defendant, other brother of the appellant, was ex -parte. The daughters had not been impleaded as party. In his defence, the appellant pleaded that the entire property standing in the name of Nasib Kaur -deceased was bequeathed by her vide registered Will dated 4.12.1992 executed in favour of the appellant and his brother -Amarjit Singh. Both the courts below found that the alleged Will produced by the appellant was surrounded by suspicious circumstances, hence, the same was rejected and the property was directed to be divided equally amongst all the legal heirs. Learned counsel for the appellant, while assailing the findings recorded by both the courts below, submitted that Nasib Kaur was of sound mind at the time of execution of the Will. She had clearly mentioned in the Will dated 4.12.1992 that respondent No. 1 -plaintiff had been living separately since long. He has separate source of income. He will not be entitled to any share in the property owned by her. The entire property will be divided amongst the appellant and Amarjit Singh, as they had been looking after her well. He further submitted that in the Will, it was clearly stated that out of three daughters, two were already married, on whose marriage sufficient amount has already been spent, whereas one of the daughters is unmarried. Two sons, in whose favour the entire property had been bequeathed by Nasib Kaur -deceased, will be responsible to perform the marriage of their third sister. Further, learned counsel submitted that the Will in question was a registered document. The same was required to be accepted as such. For getting the Will registered, Nasib Kaur had gone to Tehsil. The Will was scribed by Shangara Ram, Deed Writer. It was witnessed by Bikkar Singh and Gurmit Singh. The appellant was not able to produce either of the two witnesses to the Will as Bikkar Singh died and Gurmit Singh was in a state where he could not make a statement. Son of Bikkar Singh was produced, who identified the signatures of his father on the Will.
(3.) WHILE impugning the findings recorded by the courts below, learned counsel for the appellant submitted that original Will could not be produced as the same was not traceable. It was not handed over by deceased -Nasib Kaur to the appellant. Certified copy thereof was produced in court. The witness from the office of Registrar was summoned, who had proved the fact that certified copy produced by the appellant was as per the record. That was sufficient proof of the Will. Thumb mark of the executant of the Will was duly proved by the appellant while appearing as DW2. Learned counsel further submitted that in the circumstances, the presumption available under Section 60 of the Registration Act, 1908 was available. For proving a Will, totality of the circumstances has to be seen and not in isolation.;