Avtar Singh and ors. Vs. Bhagi (Deceased) Through L.H. - Court Judgment

Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - since the plaintiff's claim being widow of the deceased sarwan singh as well as her right to succeed was being contested on the basis of will by the defendants; it is in such like circumstances that the courts envisage test of satisfaction of judicial conscience. however, in the instant case, a number of circumstances referred to in the earlier part, clearly create suspicion as to its genuineness. in chanchal singh's case (supra) the claim on widow and married sister was ignored in view of the proof of due execution of will and the fact that the same was free from any suspicion and satisfied the test of 'judicial conscience'.similarly, in dalip singh's case (supra) the court after coming to a conclusion that the will is duly proved and free from suspicion ignored the claim of a married daughter, as ever since her marriage almost for a period of 21 years, the beneficiaries had been looking after the deceased and in these circumstances observed that the jats prefer to keep the property in their family. according to the counsel, the trial court has erred is not properly perusing khasra girdawari entries of exhibit d-4. the appellants have, indeed, taken an exceptional stand.n.k. kapoor, j.this is defendants' regular second appeal against the judgment and decree of the additional district judge, sangrur, whereby the appeal filed by the plaintiff was accepted thereby decreeing her suit.1. briefly put, the plaintiff filed a suit to the effect that she is owner in possession of land measuring 17 bighas 18 biswas as detailed in the heading of the plaint and further sought the relief of permanent injunction restraining the defendants from dispossessing from the suit land forcibly. the case of the plaintiff was that sarwan singh, husband of the plaintiff, was owner of the land in dispute, sarwan singh died on december 3, 1976 leaving behind plaintiff as his only legal heir and successor. accordingly, the plaintiff took possession of the suit land and started cultivating the same through her tenant joginder singh. since the plaintiff's claim being widow of the deceased sarwan singh as well as her right to succeed was being contested on the basis of will by the defendants; hence this suit.2. the defendants put in appearance and filed written statement. they admitted that sarwan singh was owner in possession of the suit land. he was their maternal uncle. according to defendants, sarwan singh was living with them and they, in fact, had been looking after him during those days. it is further the case of the defendants that sarwan singh executed a registered will on 29.9.1975 in favour of the defendants and hence they are owners in possession of the suit land.3. on the pleadings of the parties, following issues were framed :--(1) whether the plaintiff is the owner and in possession of the suit land?(2) whether sarwan singh deceased had executed a valid will on 29.9.1975 in favour of the defendants and they are in possession of the suit land ?(3) relief.the trial court found the will dated 29.9.1975 as genuine and thus dismissed the suit filed by the plaintiff. the trial court further held that the defendants are in possession of the suit land after the death of sarwan singh deceased.4. before the lower appellate court, the appellant challenged the finding of the trial court with regard to issue no. 2 i.e. as to whether sarwan singh executed a valid will in favour of the defendants and they are in possession of the suit land. according to the counsel mere examination of the scribed and the attesting witnesses is itself not sufficient to dispel the various suspicious circumstances surrounding its due execution. the counsel highlighted the factum of non mentioning of the name of mst. bhagi, his widow not providing for her maintenance and that none of the witnesses (sic) of the will of the deceased. the lower appellate court on reappraisal of the evidence and in the light of the submission made by the counsel for the appellant found sufficient merit in her pleas and held the will surrounded by suspicious circumstances. the lower appellate court further observed, 'since possession of smt. bhagi over the land in dispute was not disputed before me, i must hold that smt. bhagi is the owner and in possession of the land in dispute and is, therefore, entitled to restrain the defendants from interfering with her possession over the suit land.'5. learned counsel for the appellants has assailed the judgment and decree of the lower appellate court terming this to be wholly illegal land perverse. according to the learned counsel, the will executed by sarwan singh deceased is duly proved as per statements of siri krishan scribe and sarv sh. amar singh and uttam singh, the attesting witnesses. despite their lengthy cross-examination, nothing could be found by the plaintiff which could, in any manner, cast a doubt as to the veracity of their statements. as regards the objection that both the attesting witnesses do not belong to the village of sarwan singh deceased, he asserted, that can hardly be taken to be a circumstances to ignore a duly executed document which otherwise is free from suspicion of any sort. besides, the villages mongewal and manal are quite near to village minsa where sarwan singh used to reside. similarly, non-mentioning the name of smt. bhagi - the alleged widow - or not providing for her maintenance is no ground to ignore a duly executed document i.e. the last will of the testator. there is otherwise ample material on record for ignoring the claim of mst. bhagi. according to the counsel, she, in fact, had deserted sarwan singh, who had been looked after by the defendants during his last days. besides this, mst. bhagi had sufficient property from her earlier husband. even she had grown up son and thus sarwan singh thought that property should be given to the defendants who are none else than his real sister's sons. in support of his contention, the counsel relied upon the judgments in case smt. sushila devi v. pandit krishna kumar missir and ors., air 1971 sc 2236, smt. malkani v. jamadar and ors., air 1987 sc 787, h. venkatachala iyengar v. thimmafamma and ors., air 1959 sc 443 and chanchal singh v. rattan kaur (deceased) through her legal heirs charan singh and ors., 1988 (1) plr 666 and dalip singh and ors. v. pritam kaur, 1989 (2) plr 183.6. on the other hand, learned counsel for the plaintiff in support of the judgment and decree of the lower appellate court has contended that the lower appellate court on reappraisal of the evidence on record has returned a finding that the will is not free from an element of suspicion. this being otherwise also a finding of fact is not amenable to any interference under section 100 of the code of civil procedure. he further argued that the propounder in the present case took an active part in the execution of the will which itself is a circumstance creating a grave doubt in its due execution. admittedly, no provision for maintenance of smt. bhagi (widow) having been made is itself a factor which casts serious doubt as to the genuineness of the will. for this view reliance was placed on the pronouncement of the apex court in case kalyan singh v. smt. chhoti and ors., air 1990 sc 396.7. i have heard learned counsel for the parties at a considerable length. as has been noticed in various judicial pronouncements the will speaks from the death of the testator, and so, when it is produced before a court, the testator who had already departed from the world cannot say whether it is his will or not; and thus it casts a greater burden upon the court to examine this document minutely and see if the same is surrounded by any suspicious circumstances. the suspicious circumstances can be as to the genuineness of the signatures of the testator: condition of his mind; dispositions made in the will being unnatural and unfair in the light of the circumstances or such other circumstances which may create a suspicion. thus, before such a document is accepted as genuine i.e. last will of the testator, all these suspicious circumstances surrounding the will have to be dispelled by the person setting up this document by leading clear and satisfactory evidence. admittedly, the will does not make any provision for the maintenance of smt. bhagi which is one of the factors which weighed with the lower appellate court while reversing the judgment and decree of the trial court. in fact, no reason has been assigned for not providing any maintenance to the plaintiff. even her name did not find mention in the will. the defendants have been contested her claim to be the widow of sarwan singh. in the light of these findings of the court below, the suspicious circumstances have not been dispelled. no plausible explanation has been given for not associating any respectable of the village i.e. village minsa where sarwan singh used to reside and breathed his last also. not only this, the propounder has taken active part in the execution of the will as has come on record, not only the defendants had taken active part in the execution of the will, but are its beneficiaries also. it is in such like circumstances that the courts envisage test of satisfaction of judicial conscience. the judgment cited by the appellants in sushila devi's case (supra), where the will was held to be genuine though it deprived children of the testator, has no applicability to the facts of the present case. on appreciation of evidence, the courts below found the will to be last will of the testator and that too free from suspicion of any kind. however, in the instant case, a number of circumstances referred to in the earlier part, clearly create suspicion as to its genuineness. similarly, the judgment in smt. malkani's case (supra) does not help the case of the appellants. in that case, the court declined to interfere in view of the concurrent findings of the courts below to the effect that the will was duly executed. the sole circumstance brought out that the defendants, who were beneficiaries under the will, had taken active part in its execution was brushed aside with the observation that this by itself was not sufficient to create any doubt either about testamentary capacity of the testator or the genuineness of the will. the court declined to interfere in view of the concurrent findings of the courts below with the observation that no question of law much less a substantial question of law arose for determination. in chanchal singh's case (supra) the claim on widow and married sister was ignored in view of the proof of due execution of will and the fact that the same was free from any suspicion and satisfied the test of 'judicial conscience'. similarly, in dalip singh's case (supra) the court after coming to a conclusion that the will is duly proved and free from suspicion ignored the claim of a married daughter, as ever since her marriage almost for a period of 21 years, the beneficiaries had been looking after the deceased and in these circumstances observed that the jats prefer to keep the property in their family. these decisions are on peculiar facts of their cases and have no applicability on the facts of the present case. accordingly, i find no merit in any of the contentions raised by the counsel for the appellants.8. trial court relied upon the statement of joginder singh and entry in khasra girdawari exhibit d-4 and held the defendant-appellants to be in possession of the suit land. before the appellate court, the defendant appear to have conceded this issue as is clear from the observation of the court referred in the earlier part of the judgment. despite having conceded this point, the counsel for appellants challenges this observation of the lower appellate court and prays that either the matter be remitted back to the lower appellate court or decided it on the basis of evidence available on record.9. counsel for the respondent-plaintiff seriously challenges the assertion of the counsel for the appellants and further contends that the land in dispute has remained in cultivating possession during the life time of sarwan singh and mere ipsi dixit of joginder singh could not be made basis to contend that the possession is of the appellants. according to the counsel, the trial court has erred is not properly perusing khasra girdawari entries of exhibit d-4. the appellants have, indeed, taken an exceptional stand. it is quite inconceivable that the court will record such a finding without the concession/consent of the other side. it is also often observed that the counsel do concede certain points during the course of arguments when confronted with legal and factual aspects of certain points and on this basis the reference is made in the judgment. admittedly, the land remained in cultivating possession of sarwan singh during his life-time. he died on 3.12.1976. till such time, joginder singh is not shown to be in possession even as per entry in khasra girdawari ex. d-4. since succession does not remain in abeyance, it would be presumed that mst. bhagi being his widow succeed till her claim is declined on the basis of any testamentary disposition. this way initial presumption would be that mst. bhagi came into possession of the suit land i.e. in footsteps of sarwan singh. besides this, there has been clear error in reading entries of khasra girdawari-kharif 1975 to rabi 1978 - exhibit d-4. except for an entry in respect of one khasra no. 168 there is no entry where joginder singh's name has been recorded. this only reads as 'sarwan singh has died. rabi under cultivation of joginder singh non-occupancy tenant as no, 165 under smt. bhagi wd/o sarwan singh' which pertains to rabi 1977. neither in respect of any other khasra number nor crops the name of joginder singh is recorded in exhibit d-4. in case it is presumed that mst. bhagi inducted joginder singh as tenant at will, then too his possession would in law be deemed to be of smt. bhagi. otherwise, it appears to be a stray entry neither authenticated by any other evidence. there is no proof on record that he was inducted by sarwan singh or he has paid any batai. on these premises, the counsel for the respondent perhaps rightly conceded before the lower appellate court. in any case, the finding of the trial court is quite perverse and it is based on misreading of entries of khasra girdawari exhibit d-4 and thus unsustainable. this being the position, no infirmity has been found in this observation of the court below. resultantly, i find no merit in the appeal and the same is hereby dismissed. in view of the peculiar circumstances of the case the parties will bear their own costs.