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PETITIONER: MAJOR SING

       Vs.

RESPONDENT: RATTAN SINGH (DEAD) BY L.RS. & ORS.

DATE OF JUDGMENT:       10/12/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises from the judgment of the  learned single  Judge of  the Punjab  & Haryana High Court, Chandigarh, made on July 11, 1985 in SA No.2830/80.      The admitted  facts are  that  the  respondents  Rattan Singh  &  Daulat  Singh  were  brothers.  Daulat  Singh  had executed a will on January 11, 1974 under Ex. PA bequeathing his property  to Rattan  Singh who died on January 19, 1974. It would appear that the appellant is a predecessor-in title of his  sister, Dayal  Kaur. Rattan Singh & Daulat Singh had three sisters  by name  Rallo, Dayal  Kaur and  Inder  Kaur. Dayal Kuar got mutated the properties to the extant of 1/3rd share to  each of  the sister  in the  mutation proceedings. subsequently, the  respondents filed  a suit for declaration on the  basis of  the will.  The trial  Court dismissed  the suit. On appeal, it was confirmed. As stated earlier, in the second appeal, the High court allowed the appeal and decreed the suit as prayed for, Thus this appeal by special leave.      Leraned counsel  for the  appellant has  contended that the High  Court could  not interfere  under Section 100, CPC since the  suspicious features  of the will are questions of facts.  The   trial  Court   and  the  appellate  Court  had considered the  suspicious feature  and were not inclined to interfere. It  is the  duty of the propounder of the Will to establish that  Will was  validly executed  removing all the suspicious features  satisfying conscience  of the Court. In that behalf, the high Court was not justified in interfering in the second appeal as there was on substantial question of law for  decision under  Section 100 CPC. It is seen that it is an admitted position that Rattan Singh, on coming to know that his  brother was  unwell, had gone from Calcutta to see him. After  his coming, the Will came to be executed and the execution of  the Will  also  was  not  disputed.  The  only question is:  whether the  Will came  to be  executed in the normal cirumstances?  The courts below relied heavily on two suspicious features,  namely, the  Will was  not produced at the earliest  point of them, it was produced sometime before the trial.  secondly, the  at testators  were disbelieved on two  grounds,  namely,  that  Hari  Singh,  one  of  the  at testators had  not disclosed  that the Will was not executed

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when the  mutation was  effected in  his presence.  The High Court has  explained that  the  mutation  was  not  properly removed and  that there  was no  reason to  disbelieve  that fact. The High Court had perused the original as well as the photocopy of  the will  produced in  the trial  Court in the first instance.  The High  Court has  found that there is no interpolation in the original Will. Therefore, the rejection of the  evidence of the attestaor, Hari Singh’s evidence was found to  be not  correct. As  regards the other attestator- witness, by  name Gurdev  Singh, It  was disbelieved  on the ground that  he filed  a suit  in a  litigation against Jeet Singh. It  was hardly a ground to disbelieve the evidence of the attestator’s  evidence. Under  these circumstances, when the courts below had rejected and disbelieve the evidence on the ground  that the  propounder had not properly discharged his duty,  it is  the duty  of the  High Court  to  consider whether  the   reasons  given   by  the  courts  below  were sustainable in  law. In  view of  the above reasoning of the trial Court  as affirmed by the appellate Court, necessarily the High Court requires to go into that question to test the reasons. in  this perspective,  the High  Court has  rightly gone into  that question and found that the reasons given by the courts  below are  flimsy.  Thus  there  is  substantial question of  law that  has arisen  for consideration and the High Court  has rightly  considered  the  question.  We  are entirely agree with the High Court.      The appeal is dismissed. No costs.