- (1.) This order of mine shall dispose of two regular second appeals bearing RSA No.1272 of 2012 and RSA No.1273 of 2012 as the common questions of law and facts involved in both the appeals are the same. The appellant-plaintiff is aggrieved of the judgment and decree of both the Courts below, whereby the suit bearing No.261 of 2007 seeking declaration and suit No.385 seeking identical relief, have been dismissed by both the Courts below.
(2.) It would be apt to give brief preface to the facts leading to filing of the aforementioned suits, before adverting to the contentions and rival contentions of the parties to the lis. The suit at the instance of the plaintiff is based upon the registered Will dated 01.12.1998 executed by Jaswant Kaur widow of Kartar Singh (mother of the appellant-plaintiff) and the contesting respondent No.1 Jaswinder Kaur wife of Karamjit Singh (daughter of respondents-defendants).
(3.) The defendants in the written statement came out with a Will dated 23.09.1996 by which, Jaswant Kaur had bequeathed the property in favour of the Jaspal Singh and Jaswinder Kaur. It is also a pleaded case of the parties that prior to the execution of the aforementioned Will, Jaswant Kaur executed another registered Will dated 08.03.1983 in favour of the sons namely Jasbir Singh and Jaspal Singh. Both the Courts below, on the basis of the oral and documentary evidence, dismissed the suit and found that the Will dated 01.12.1998 was surrounded by the suspicious circumstances. Mr. D.V. Sharma, learned Senior Counsel, assisted by Ms. Shivani, learned counsel appearing on behalf of the appellant submits that both the Courts below have committed illegality and perversity in holding that the Will dated 01.12.1998, surrounded by the suspicious circumstances and as much as the ingredients of Section 68 of the Indian Succession Act and as well as Section 63 (C) of the Indian Succession Act, have been proved, much less, complied with. The deed-writer Mr. Aggarwal and one of the attesting witnesses, Mr. Sukhwinder Singh have been examined and both of them have been deposed in terms of the provisions of Subsection (c) of Section 63 of the Indian Succession Act. Though the Courts below have referred to the cross-examination of Jaswinder Kaur-defendant, viz-a-viz, the photographs and the thumb impressions of Jaswant Kaur on the registered Will dated 01.12.1998, yet the said piece of cross-examination has been discarded on the premise that in the last lines of her crossexamination, matter has been clarified by her. He submits that as per the settled law, there is no requirement of specific mention that it being a last, viz-a-viz the cancellation of the previous Will. In support of his contentions, he relied upon the judgment of Division Bench of Kerala High Court in Joseph V/s K.V. Ippunny and others, 2007 4 RCR(Civ) 831, and submits that the following substantial questions of law arises for determination of this Court:- 1. Whether the learned courts below erred in misreading the evidence on record, which has resulted into a perverse finding? 2. Whether the Will (Ex.P3) dated 01.12.1998, which has been registered in accordance with the provisions of the Registration Act, 1908 and has been duly proved by one of the attesting witnesses and the scribe, can the Will be said to be suspicious only on the ground that it did not make a reference to the earlier Will dated 23.09.1996? 3. Whether once the execution of the Will (Ex.P3) had been admitted by the DWs can the Will be held to be suspicious? 4. Whether the cancellation of the earlier Will dated 08.03.1983, can debar the testator to execute the Will in favour of the same beneficiaries of the Will dated 08.03.1983? Mr. H.S. Dhindsa, learned counsel appearing on behalf Jaswinder Kaur-defendant submits that the Will dated 01.12.1998 has proved to be surrounded by the suspicious circumstances as there was a spacing of the above thumb impressions of the attesting witness and as well as of the testator. No explanation has come in executing the Will as to why the testator has bequeathed the property in favour of the sons, as vide Will dated 23.09.1996, only daughter and one son namely Jaspal Singh, had been benefited. In the Will dated 23.09.1996, it has been specifically mentioned that the previous Will dated 08.03.1983 has been cancelled. In the absence of any such clause, the Will dated 01.12.1998, relied upon by the plaintiffs, has rightly been discarded. There is no need of executing the Will in favour of the sons as testator had bequeathed her entire estate vide Will dated 23.09.1996 in the equal share to Jaspal Singh and Jaswinder Kaur. Reason of dis-inheritance of Jasbir Singh has been specifically mentioned in the Will dated 23.09.1996, that he had not been taking care of the testator. He further submits that the concurrent findings of fact cannot be disturbed until and unless the substantial questions of law arises for determination which does not arise and prays for dismissal of the same.;