Judgment:
RSA No.1498 of 1986 -:1:- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.1498 of 1986 DATE OF DECISION: NOVEMBER16 2014. Surinder Singh (since deceased and now represented by his legal heirs) ....Appellant. VERSUS Piara Singh and others ....Respondents. CORAM: HON'BLE MRS. JUSTICE SNEH PRASHAR.
1. Whether the judgment should be reported in the digest?. Yes/No ---- Present: Mr. Neel Kamal Chopra, Sr. Advocate with Mr. Harminder Singh, Advocate for the appellant. None for the respondents. SNEH PRASHAR, J.
1. This was an appeal preferred by Surinder Singh son of Ajit, appellant-defendant no.1 (hereinafter referred to as “defendant no.1”.) impugning the judgment and decree dated 13.03.1986 granted by learned Additional District Judge, Jalandhar reversing the judgment and decree dated 21.03.1985 passed by Sub Judge Ist Class, Phillaur, by virtue of which the suit for permanent injunction filed by plaintiffs-respondents Piara Singh and another was dismissed. JITENDER201412.11 15:05 I attest to the accuracy and integrity of this document RSA No.1498 of 1986 -:2:- 2. The dispute between the parties was with regard to inheritance of half share owned by deceased Shri Hazara Singh in land bearing Khewat No.703, Khatoni No.1167, Khasra No.683(1-2) having a structure thereon, situated in Village Ruka Khurd, Tehsil Phillaur, District Jalandhar (hereinafter referred as the “suit land”.). The plaintiffs-respondents Piara Singh and Swaran Singh sons of Hazara Singh (hereinafter referred to as “plaintiff”.) claimed to be owners in possession of 2/3rd share in the suit land being sons/class-I heirs of Shri Hazara Singh and also by virtue of Will dated 18.04.1977 allegedly executed by Shri Hazara Singh. Ajit Singh (defendant No.2) son of Hazara Singh was said to be co-owner to the extent of 1/3rd share as per the recital in the Will.
3. Admittedly, Surender Singh (defendant no.1) is son of Ajit Singh (defendant no.2) and Smt. Bachan Kaur (defendant no.3) is the real sister of the plaintiffs and defendant no.2. The suit land measuring 1 Kanal 2 Marlas was owned by Hazara Singh and Bhan Singh. During their lifetime, they effected partition and Hazara Singh was allotted half share falling towards the Eastern side. Shri Piara Singh and Swaran Singh (plaintiffs) filed this suit for possession by way of partition through metes and bounds of their 2/3 rd share out of half share of Hazara Singh in the suit land. As a consequential relief, they sought a decree of Permanent Injunction restraining the defendants from dispossessing them illegally and forcibly from the suit land. They alleged that during the lifetime of Shri Hazara Singh (since deceased) they and Ajit Singh (defendant no.2) lived with their father Hazara Singh. They JITENDER201412.11 15:05 I attest to the accuracy and integrity of this document RSA No.1498 of 1986 -:3:- looked after and maintained Shri Hazara Singh and for the services rendered by them as well as out of love and affection Shri Hazara Singh executed a valid Will dated 18.04.1977 in their favour and in favour of their brother Ajit Singh (defendant no.2). By virtue of the Will all three of them inherited equal shares in the suit land to the exclusion of their sister Smt. Bachan Kaur (defendant no.3). It was further pleaded that Surinder Singh and Ajit Singh (defendants no.1 and 2) at their back got the half share in the suit land mutated in favour of Surinder Singh (defendant no.1) vide mutation no.5894 which was against law and facts. They learnt about the sanction of mutation only when they obtained a copy of the Jamabandi from the Area Patwari. The Mutation no.5894 was challenged as illegal and the action of the defendants was alleged to be motivated to deprive them (plaintiffs) from inheritance of the property of their father. Pleading that they were put in possession of a portion of the suit land by Shri Hazara Singh himself and were continuing to be in possession of the same and further that they were unable to pull on with Ajit Singh (defendant no.2), the plaintiffs prayed separation of their 2/3rd share by way of partition.
4. The suit was contested by Shri Surinder Singh (defendant no.1) and by Smt. Bachan Kaur (defendant no.3) by filing separate written statements. The preliminary objections raised by defendant no.3 were with regard to non-joinder of necessary parties as the plaintiffs had failed to implead legal heirs of Bhan Singh deceased who were owners of the other JITENDER201412.11 15:05 I attest to the accuracy and integrity of this document RSA No.1498 of 1986 -:4:- half share in the suit land; mis-joinder of cause of action because three reliefs of declaration, possession and permanent injunction had been sought together; valuation of the suit for the purposes of court fee and jurisdiction etc. On merits, the stand taken by defendant no.3 was that the Will dated 18.04.1977 alleged to have been executed by her father Shri Hazara Singh was a forged and fabricated document. She also claimed to be in possession of the suit land as a co-sharer with the plaintiffs and defendant no.2.
5. In the written statement filed by Surinder Singh defendant No.1, preliminary objections raised were with regard to the plaint being vague, ambiguous and self-contradictory; valuation of the suit for the purposes of court fee and jurisdiction; estoppel; and mis-joinder and non-joinder of necessary parties. He pleaded that the plaintiffs had no right, title or interest in the suit land as the same had been inherited by him by virtue of a registered Will dated 18.04.1983 executed in his favour by his grandfather Shri Hazara Singh in lieu of the services rendered by him. He flatly denied that the plaintiffs were in possession of any portion of the suit land. It was mentioned that Swaran Singh (plaintiff no.2) had renounced the world about 32 years back and had become a Sadhu. He ceased to have ties with the family and therefore also, was not entitled to inherit the suit land. The registered Will dated 18.04.1983 was said to have been executed by Hazara Singh in a sound and disposing state of mind and with JITENDER201412.11 15:05 I attest to the accuracy and integrity of this document RSA No.1498 of 1986 -:5:- his free will. Surinder Singh pleaded that the previous old building existing on the suit land was demolished and with the consent of Shri Hazara Singh a new building was constructed by him by spending a huge amount from his pocket. The validity of the Will dated 18.04.1977 (Ex.P2) propounded by the plaintiffs was vehemently impugned.
6. On the rival contentions of the parties, following issues were settled:- (1) Whether the plaintiffs are owners of 2/3rd share of the property in dispute?. OPP. (2) Whether the plaintiffs are entitled to the partition and possession of their share in the suit property as alleged in the plaint?. OPP. (3) Whether the mutation in favour of defendant no.1 is illegal, null and void?. OPD-1. (4) Whether the deceased Hazara Singh executed a valid Will of dated 18.04.1983 in favour of defendant no.1?. OPD-1. (5) Whether Swaran Singh, plaintiff no.2, has renounced the world. If so, its effect?. OPD. (6) Whether defendant no.1 raised construction of the suit property as alleged in the written statement, if so, its effect?. OPD-1. (7) Whether deceased Hazara Singh executed a valid will of dated 18.04.1977 in favour of his sons?. OPD. JITENDER201412.11 15:05 I attest to the accuracy and integrity of this document RSA No.1498 of 1986 -:6:- (8) Relief.
7. Both the parties led oral and documentary evidence to substantiate their pleadings.
8. Finding that the plaintiffs had utterly failed to prove the due execution of the Will dated 18.04.1977, whereas defendant no.1 could successfully prove execution of Will dated 18.04.1983 (Ex.D1) in his favour by his grandfather Hazara Singh, learned trial Court dismissed the suit of the plaintiffs with costs vide judgment and decree dated 21.03.1985.
9. Plaintiffs preferred an appeal which vide judgment and decree dated 13.03.1986 was allowed with costs throughout by learned Additional District Judge, Jalandhar and a preliminary decree for possession by partition by metes and bounds of 2/3rd share out of half share of the suit land was passed in favour of Piara Singh and Swaran Singh (plaintiffs) who, alongwith Shri Ajit Singh (defendant no.2), were declared owners in equal shares to the estate of Hazara Singh (deceased). Also granting a relief of permanent injunction, the defendants were restrained from dispossessing the plaintiffs illegally and forcibly from the suit land.
10. Feeling aggrieved by impugned judgment and decree dated 13.03.1986 of learned Additional District Judge, Jalandhar, defendant no.1 (Surinder Singh-since deceased and now represented by his legal heirs) preferred the present appeal.
11. Two Wills allegedly executed by deceased Shri Hazara Singh, father of the plaintiffs, defendant no.2 and defendant no.3 and grandfather of defendant no.1, had been set up by the parties. The plaintiffs relied upon JITENDER201412.11 15:05 I attest to the accuracy and integrity of this document RSA No.1498 of 1986 -:7:- an unregistered Will dated 18.04.1977 Ex.P2 which was purported to have been executed by Shri Hazara Singh in their favour and in favour of Shri Ajit Singh (defendant no.2) to the exclusion of Smt. Bachan Kaur (defendant no.3). On the other hand, defendant no.1 produced a registered Will dated 18.04.1983, by which he alone was made the beneficiary by Shri Hazara Singh. While learned trial Court vide judgment and decree dated 21.03.1985 accepted the Will dated 18.04.1983 Ex.D1 as legally proved last testament of deceased Hazara Singh, learned first appellate Court disagreeing with the view taken by the learned trial Court came to the conclusion that the Will dated 18.04.1977 Ex.P2 on the face of it sounds natural as compared to the Will dated 18.04.1983 Ex.D1.
12. The onus to prove that the Will dated 18.04.1977 Ex.P2 was executed by Shri Hazara Singh voluntarily with sound and disposing mind and was his last testament, was squarely on the plaintiffs. PW1 Piara Singh deposed that after the death of his father Shri Hazara Singh he found the Will Ex.P2 from amongst the documents belonging to his father. Perusal of the Will Ex.P2 shows that it was scribed by Chaman Lal, Petition Writer and the two witnesses who attested the same were Bhan Singh, Lamberdar and Dharam Singh son of Bant Singh. It is established not only from the statement of PW1 plaintiff Piara Singh and PW2 Bhagat Ram, but also proved from the statement of DW1 Surinder Singh that both the attesting witnesses and the scribe of the Will Ex.P2 had since expired. For that reason, none out of them was examined by the plaintiffs. In the above state of facts the only mode for proving the Will JITENDER201412.11 15:05 I attest to the accuracy and integrity of this document RSA No.1498 of 1986 -:8:- was to comply with the provisions of Section 69 of the Evidence Act, 1872 (for short the “Act of 1872”.). The said provision for ready reference is reproduced hereunder:-
“69. Proof where no attesting witness found.—If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.”. 13. It is clear from the above provision of law that if no attesting witness of the Will could be found, it becomes incumbent upon the propounder of the Will to prove two facts:- (i) that the attestation of one attesting witness atleast was in his handwriting; and (ii) that the signatures of the executant is in his handwriting.
14. The evidence of the plaintiffs when tested in the light of above provision of law is found to be completely lacking. The only witness examined by the plaintiffs in this direction was PW3 Jagdish Rai son of Chaman Lal. As indicated above, the Will was alleged to have been scribed by Chaman Lal and PW3 Jagdish Rai was his son. Since Shri Chaman Lal had died, PW3 identified the handwriting on the Will Ex.P2 as well as the signatures of the scribe on the same as that of his father Chaman Lal. No doubt, PW3 stated that his father Chaman Lal was maintaining the Petition Writer's register and that an entry regarding the JITENDER201412.11 15:05 I attest to the accuracy and integrity of this document RSA No.1498 of 1986 -:9:- Will Ex.P2 finds mention in the said register at serial no.56 dated 18.04.1977 and further that the entry bears the thumb impressions of Hazara Singh, however, admittedly he was neither the scriber nor his claim was that in his presence the will Ex.P2 was executed/ thumb marked by Shri Hazara Singh. He also did not depose that he was a witness to the affixation of thumb impression by Shri Hazara Singh against the entry of the Will at serial no.56 dated 18.04.1977 in the Petition Writer's register. Evidently his statement was incompetent to prove even one of the two facts required to be proved as postulated in Section 69 of the Act of 1872. He could neither prove that the attestation of the will by one attesting witness was in his handwriting nor that the signatures/ thumb impressions on the Will were of the testator.
15. The will Ex.P2 shows that besides the testator Hazara Singh and attesting witnesses Bhan Singh Lamberdar and Dharam Singh son of Bant Singh had thumb marked the same. Certainly witnesses Bhan Singh, Lamberdar and Dharam Singh son of Bant Singh were proved to be dead. But, it is not the case of the plaintiffs that there was no other document available bearing thumb impressions of testator Hazara Singh or of attesting witnesses Bhan Singh Lamberdar and Dharam Singh son of Bant Singh. According to PW Piara Singh, he found the Will Ex.P2 from amongst the documents belonging to his father. He did not say that no other document left by his father among which the Will was lying contained the thumb impressions of his father. It was also not the case that the thumb impressions were not good enough for being compared with some admitted JITENDER201412.11 15:05 I attest to the accuracy and integrity of this document RSA No.1498 of 1986 - :
10. : - thumb impressions of the testator or of the attesting witnesses. One of the attesting witness namely Bhan Singh was said to be Lamberdar of the village. In his capacity as a Lamberdar, he might have thumb marked number of documents about which no dispute could be raised. Therefore, if not of the testator and the other attesting witness Dharam Singh son of Bant Singh, the plaintiffs could have atleast proved the thumb impressions of Lamberdar Bhan Singh on the Will Ex.P2.
16. A Will is not a document which can be admitted in evidence without complying with the provisions specifically stipulated for proving the same. The factum of existence of the Will Ex.P2 was brought to light by the plaintiffs only when they filed the present suit on 24.09.1983. As observed above, the plaintiffs alleged that after the death of their father the Will was found from amongst the documents belonging to their father. No witness, a relative or an independent person, was examined to prove the said factum. It does not appeal to a prudent mind that Shri Hazara Singh executed a Will long before his death i.e. almost six years prior to his death but did not mention about the same to any of his family members/ legatees. It also does not sound natural that he did not hand over his Will to some responsible person of his choice and left the same concealed amongst other documents. So much so that he did not take his daughter Bachan Kaur in confidence before or after executing the Will even though he was excluding her from inheritance, when it is not the case of either side that he did not enjoy good relations with her. All the said circumstances which are material go a long way to raise strong suspicion regarding execution of the Will JITENDER201412.11 15:05 I attest to the accuracy and integrity of this document RSA No.1498 of 1986 - :
11. : - dated 18.04.1977 Ex.P2.
17. On the other hand, in order to prove the registered will dated 18.04.1983 Ex.D1 executed by Shri Hazara Singh in his favour, defendant no.1 Suriner Singh examined DW2 Mahender Singh, Scriber of the Will and also the attesting witnesses DW4 Karam Singh and DW5 Mohan Lal. They all consistently deposed that the Will Ex.D1 was executed by Shri Hazara Singh voluntarily and in a sound and disposing statement of mind. The case of defendant no.1 Surinder Singh was that the Will Ex.D1 was executed in his favour by his grandfather out of love and affection for him and also for the services rendered by him. He testified that Shri Hazara Singh had strained relations with his sons and he lived separate from Piara Singh. As regards, the second plaintiff Swaran Singh, it was said that he had renounced the world 30-35 years back.
18. Learned appellate Court rejected the Will Ex.D1. It appeared to have been swayed by some facts stated by DW1 Surinder Singh (defendant no.1). DW1 stated in his cross-examination that his father (Ajit Singh) used to pick-up quarrels with his grandfather Hazara Singh and that his father never supplied food to him because of which there used to be quarrel between them. The kind of relations Hazara Singh enjoyed with his son Ajit Singh was not important because it could not be proved by the plaintiffs by leading cogent and reliable evidence that Shri Hazara Singh was residing with them and they enjoyed better relations with him than Ajit Singh.
19. Surinder Singh DW1 was the grandson of Hazara Singh. It has come in his statement that his grandfather was living with him for the last JITENDER201412.11 15:05 I attest to the accuracy and integrity of this document RSA No.1498 of 1986 - :
12. : - about 12-13 years before his death. It means that even if his father Ajit Singh was not looking after Hazara Singh, he as grandson was taking care of him and was serving him. DW1 also stated that he got Hazara Singh treated from Dr. Mohan Lal and Dr. Shankaria of his village. He added that Shri Hazara Singh died in his house and all his last rituals were performed by him. Recital of Holly Guru Granth Sahib was held in his house by Manak Singh and the entire expenditure of the same was borne by him.
20. Not an iota of evidence could be led by the plaintiffs to controvert the aforesaid facts. Rather, PW1 Piara Singh in his cross- examination admitted the facts deposed by DW1 Surinder Singh. He accepted that the last remains of Shri Hazara Singh were taken to Kiratpur by defendant no.1 Surinder Singh. He also admitted that after the death of Hazara Singh, Holly Guru Granth Sahib was recited by Manak Singh. To a quarry put to him about the total expenditure incurred on last rites of Shri Hazara Singh, he stated that Surinder Singh must be knowing about the same. To another quarry put to him regarding the bank account, if any of Shri Hazara Singh, his answer was the same that it must be in the knowledge of Surinder Singh. The explanation of PW1 Piara Singh was that Surinder Singh had taken the last remains of Hazara Singh to Kiratpur because he had been given `1,000/- by Shri Hazara Singh for that purpose. If that was true, PW1 Piara Singh was required to explain why his father gave `1,000/- for taking his last remains to Kiratpur to his grandson Surinder Singh and did not give that money to him (Piara Singh) for performing the last ritual. JITENDER201412.11 15:05 I attest to the accuracy and integrity of this document RSA No.1498 of 1986 - :
13. : - Defendant Surinder Singh examined Manak Singh DW3 who affirmed the fact that entire expenditure of the recital of the Holly Guru Granth Sahib after the death of Shri Hazara Singh was incurred by defendant Surinder Singh.
21. The above scrutiny of the statement of PW1 Piara Singh himself is sufficient to establish that prior to his death Shri Hazara Singh was living with his grandson defendant Surinder Singh who was rendering services to him. Plaintiff Piara Singh was residing separate from his father. As such, there is no reason to disbelieve defendant Surinder Singh that out of the love and affection and in lieu of the services rendered to him Shri Hazara Singh executed the Will Ex.D1 in his favour. The fact that the Will was registered is an additional factor to prove that the Will was duly executed and that the testator was in a sound and disposing mind at the time of execution of the said Will.
22. No evidence could be led by the plaintiffs to prove that prior to his death Shri Hazara Singh was not in a sound and disposing mind. If according to Surinder Singh he remained sick for 10-15 days prior to his death, it cannot outrightly be concluded that the old man was not in a sound and disposing mind. Least it could be said that four months prior to his death i.e. at the time of execution of the Will Ex.D1 on 18.04.1983 he was not in a fit state of mind. Since the Will was registered, it becomes needless to say that Shri Hazara Singh had appeared before the Sub Registrar and admitting and accepting the contents of the Will Ex.D1 had thumb marked on the same before the said authority. JITENDER201412.11 15:05 I attest to the accuracy and integrity of this document RSA No.1498 of 1986 - :
14. : - 23. Thus, the conclusion irresistible is that due execution of the Will Ex.D1 is established, it is not proved to be surrounded by any suspicious circumstance whereas the plaintiffs had completely failed to prove execution of the Will Ex.P2. The Will Ex.D1 being the last testament of Shri Hazara Singh had to prevail and accordingly it is held that by virtue of the Will Ex.D1 the ownership rights qua the suit land devolved upon defendant no.1 Surinder Singh who was already in possession of the said property and the plaintiffs had no right, title or interest in the same. The Mutation No.5894 dated 22.08.1983 was rightly sanctioned in favour of defendant no.1 Surinder Singh. Resultantly, the appeal is allowed. The judgment and decree dated 13.03.1986 passed by the learned first Appellate Court is set aside and the judgment and decree passed by the learned Trial Court is restored and upheld. (SNEH PRASHAR) JUDGE November 16, 2014. jitender JITENDER201412.11 15:05 I attest to the accuracy and integrity of this document