RSA No.2152 of 1989 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.2152 of 1989
Date of Decision: 2.2.2009
Budh Singh ..Appellant
Vs.
Gian Kaur & Ors. ..Respondents
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.Harbhagwan Singh, Sr. Advocate,
with Mr.Amit K.Singh, Advocate,
for the appellant.
Mr.Animesh Sharma, Advocate,
for the respondents.
---
1. Whether Reporters of Local Newspapers may
be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
Digest?
---
Vinod K.Sharma,J. (Oral)
The defendant/appellant by way of this regular second appeal
RSA No.2152 of 1989 2
has challenged the judgment and decree dated 25.5.1989 passed by the
learned lower appellate court decreeing the suit of the plaintiff/respondents
for declaration.
The plaintiff/respondents filed a suit for declaration to the
effect that they are owners in possession of 80 kanals 9 marlas of land
described in the head-note of the plaint, being legal heirs of Jamita
deceased. In the alternative decree for possession was prayed for.
The plaintiff/respondents pleaded that the land in dispute was
owned by Jamita son of Julli, who was next collateral of the plaintiffs.
Jamita went out of village, more than 17 years back and never came back in
the village. The plaintiff/respondents being the next collateral of the
deceased has been in possession of the land in suit. Jamita deceased was
said to be issueless and unmarried and further that defendant-appellant had
no relationship with Jamita. Plaintiffs claimed that the defendant was
threatening to alienate the suit land by way of sale/mortgage etc by claiming
that Will dated 17.4.1984 was executed in his favour and the mutation of the
said Will also stood sanctioned in his favour. The plaintiff/respondents
challenged the Will on the plea that Jamita never executed any Will in
favour of the defendant and if any such Will is proved the same is null and
void and not binding against the interest of the plaintiff/respondents.
The defendant/appellant contested the suit by controverting the
material facts. It was the case of the appellant/defendant that the plaintiffs
were neither the owners nor in possession of the suit land and therefore, the
suit for declaration and permanent injunction was not maintainable. It was
RSA No.2152 of 1989 3
claimed by the defendant that he used to render services to the deceased
Jamita who executed a registered Will in favour of the defendant on
17.4.1984. The defendant claimed that after the death of Jamita he was in
possession of the land in dispute as a owner. Locus standi of the
plaintiff/respondent to file the suit was also challenged.
On the pleadings of the parties learned trial court was pleased
to frame the following issues:-
1. Whether the plaintiffs are the heirs of Jamita deceased and
have locus standi to file the suit? OPP
2. Whether the plaintiffs are in possession of the suit land and
a suit for declaration and injunction is maintainable? OPP
3. Whether Jamita deceased executed a valid will in favour of
the defendant on 17.4.1984? OPD
4. If issue No.3 is proved,whether the alleged will is the result
of fraud, misrepresentation under influence and concealment
of true facts? OPD
5. Whether the plaintiffs are estopped to file this suit by his act
and conduct? OPD
6. Whether plaint is properly valued for purposes of court fee
and jurisdiction? OPD
7. Whether the plaintiff is entitled to decree for declaration as
in alternative in possession? OPP
8. Relief
On issue No.1 learned trial court on the basis of evidence led
RSA No.2152 of 1989 4by the parties held that the plaintiffs were heirs of Jamita deceased and
thus, had locus standi to file the suit. On issue No.2 in view of the revenue
record placed on record and also admission of defendant while appearing as
DW-3 it was held that the plaintiff/respondents were in possession of the
suit land and therefore, the suit as framed was maintainable. On issue No.3
learned trial court held that the defendant examined DW 1 Harjinder Singh
son of Thakur Singh i.e. the Deed Writer of Will dated 17.4.1984, which
was said to have been executed by Jamita and scribed by him.
Scribe also stated that the Will was signed by Jamita after
understanding the contents and attesting witnesses also signed and thumb
marked the Will. Bhajan Singh and Jagiri were said to be the attesting
witnesses to the Will. The Will was registered in the office of Sub Registrar.
Learned trial court took note of the documentary evidence i.e.
voter list Ex.D.2 and death certificate of Jamita Ex.D.4. The court held that
last rites of Jamita were performed by the appellant/defendant and thus, on
the basis of evidence brought on record held that execution of Will was
duly proved. Issue No.3 was accordingly decided in favour of the
defendant/appellant and it was held that Jamita deceased executed a valid
will in favour of the defendant/appellant on 17.4.1984.
Issue No.4 was decided against the plaintiffs for want of
evidence whereas Issues No.5 and 6 were decided against the defendant as
not pressed. On issue No.7 in view of the findings recorded on issue No.3 it
was held that the plaintiff/respondents were not entitled to decree for
declaration and in the alternative for possession. Consequently, the suit was
RSA No.2152 of 1989 5
dismissed.
The plaintiff/respondents preferred an appeal against the
judgment and decree and challenged the findings of learned lower appellate
court on issue No.3. Learned lower appellate court affirmed the findings on
issue No.1 and 2. Finding on issue No.3 were reversed by holding as under:-
” Budh Singh defendant has examined Harjinder Singh the
scribe of the Will and Bhajan Singh one of the marginal
witnesses. The scribe has confirmed that he recorded the will
at the desire of Jamita and had read over to him who signed and
thumb marked it. Bhajan Singh and Jagira Sarpanch were the
marginal witnesses. In his cross-examination, he has admitted
that he had not known Jamita personally. Bhajan Singh
attesting witness appeared as DW 2 and stated that the will had
been scribed at the desire of Jamita and was attested by Jagira
and himself and the will is Ex.D.1. In his cross-examination,
however, claimed that he was not present when Jamita signed
the will but had gone away to take water.
To my mind Bhajan Singh had made a very safe
statement in order to avoid his prosecution with respect to the
forgery of the will and putting up a false person as Jamita. He
does not claim that the will was signed by Jamita nor does he
state that the attested the will after getting any admission of
Jamita to have executed the will. In this situation it cannot
beheld that the will had been duly attested by two witnesses in
RSA No.2152 of 1989 6the presence of the testator and who had seen him signing. In
his cross-examination Bhajan Singh claimed that Jamita came
to their village in the year 1979 and he had not seen him earlier.
That when he first saw him he found Jamita sitting on the road
but he did not talk to him though he had seen him talking to
other persons,. Budh Singh in his cross-examination claimed
that prior to the year 1968 he had never seen Jamita but it was
his father who had told him that Jamita was his cousin brother.
That it was one Mela in the year 1976 when Jamita met him for
the first time and he made inquiries from him and after making
inquiries abut the names of his father and grandfather Jamita
identified him. This statement can hardly be accepted as
correct. To my mind Budh Singh and his father had brought
some old man and put him up as Jamita in order to grab the
property of Jamita deceased. His statement that Jamita met him
in the Mela in the year 1976 is contradicted by Bhajan Singh
who claims that he had seen Jamita for the first time in the year
1979 and that too sitting on a road where he was wearing
clothes of a Sadhu. To my mind Bhajan Singh was conscious of
the fact that it was an important thing as to who signed the will
as Jamita. The evidence brought for this is not sufficient to
hold that it was Jamita son of Julli who had executed the will.
If in fact Jamita had returned from his vagrancy on which he
went many years ago, and had identified some distant
RSA No.2152 of 1989 7collateral, it is unlikely that he did not visit his own village
thereafter.
10. In the will it had been scribed that Budh Singh was his
nephew but a reference to the pedigree table shows that Budh
Singh is not related to Jamita in any of the degrees of the
family. It was thus a false recital made in the will and it makes
the will all the most suspicious. I accept the argument of Shri
Bhag Singh who appears for the plaintiff/appellants that the
will Ex.A.1 was a forgery and not executed by Jamita the last
proprietor of the land in suit. The mere fact that the document
was got registered by the person who claimed himself to be
Jamita and his identify on the basis of Jagira Sarpanch accepted
by the Tehsildar, was not sufficient to prove the case of the
defendant. I hold the will to be a forge document and I set aside
the finding of the trial court on issue No.3 and decide it in
favour of the plaintiffs.”
Other issues were not pressed. Consequently the suit filed by
the plaintiff/respondents stands decreed.
Mr.Harbhagwan Singh, learned senior counsel appearing on
behalf of the appellant raised the following substantial question of law for
consideration of this court in this appeal:-
“Whether the lower appellate court has ignored important and
vital evidence and has taken into consideration inadmissible
evidence while reversing the judgment and decree of the trial
RSA No.2152 of 1989 8court?
In support of the substantial question of law learned senior
counsel appearing on behalf of the appellant vehemently contended that
the finding recorded by the learned lower appellate court on issue No.3 is
the outcome of non-consideration of documentary evidence brought on
record. The contention of the learned senior counsel was that the stand of
the plaintiff/respondents that Jamita had gone to foreign country for the last
17/18 years stood belied by the documentary evidence brought on record i.e.
the voter list Ex.D.3 and the death certificate Ex.D.4. Learned senior
counsel contended that in case the Ex.D.3 and Ex.D.4 along with oral
evidence brought on record are considered in true perspective then it has to
be held that the execution of the Will stood proved and the learned lower
appellate court, therefore, was not justified in reversing the finding on issue
No.3.
Mr.Animesh Sharma, learned counsel appearing on behalf of
the respondent/plaintiffs supported the judgment and decree passed by the
learned lower appellate court and contended that the substantial question of
law as framed does not arise for consideration. Learned counsel for the
respondents contended that in the present case learned lower appellate court
was right in holding that the Will was not proved in terms of Section 63 of
the Succession Act, 1925 as the only attesting witness produced to prove the
Will categorically stated that he was not present when Jamita signed the
Will as he had gone away to take water. The contention therefore, was that
once the execution was not proved in terms of Section 63 of the Succession
RSA No.2152 of 1989 9
Act issue No.3 was rightly decided against the defendant/appellant.
In support of this contention learned counsel for the
respondents placed reliance on the judgment of the Hon’ble Supreme Court
in the case of Girja Datt Singh Vs. Gangotri Datt Singh AIR 1955 SC
346, wherein Hon’ble Supreme Court has been pleased to lay down that to
prove the due attestation of the propounder of the Will has to prove that
the testator signed the Will, and further that they signed the same in the
presence of the testator.
Reliance was also placed on the judgment of Hon’ble Supreme
Court in the case of Apoline D’Souza Vs. John D’Souza 2007 (3) RCR
(Civil) 260, wherein Hon’ble Supreme Court has been pleased to lay down
that mere fact that the Will was registered one would not dispense with the
requirements of proof of due execution and attestation of the Will.
Reliance was also placed on the judgment of Hon’ble Madhya
Pradesh High Court in the case of Virendra Singh Pal Vs. Kashibai 1998
(4) RCR (Civil) 236 wherein the Hon’ble Madhya Pradesh High Court has
been pleased to lay down that if executant affixed thumb mark subsequent
to attestation by two witnesses on Will, said attestation is not attestation in
the eye of law and Will deserves to be ignored.
Mr.Animesh Sharma, learned counsel appearing on behalf of
the respondents also relied upon the judgment of Hon’ble Supreme Court in
the case of Janki Narayan Bhoir Vs. Narayan Namdeo Kadam 2003 (1)
RCR (Civil) 409 to contend that a person propounding the Will has got to
prove that the Will was duly and validly executed. The Will cannot be
RSA No.2152 of 1989 10
proved simply by proving that signatures on the Will were that of the
testator but must also prove that attestations were also made properly as
required by Clause (c) of Section 63 of the Succession Act.
Finally reliance was placed on the judgment of Hon’ble Madras
High Court in the case of Rengasamy Vs. Rugmini and others 2007 (5)
RCR (Civil) 72 to contend that though the Will could be proved by
examining one attestor to the Will but if in the cross-examination he admits
that he did not see the testator signing the Will the execution of the Will
would not be proved.
The contention of the learned counsel for the respondents is
that the case in hand is squarely covered by the judgment of Hon’ble
Madras High Court in the case of Rengasamy Vs. Rugmini and others
(supra).
On consideration of matter, I find force in the contentions
raised by the learned counsel for the respondents.
The requirement of attestation is statutory in nature, in view of
Section 63 of Succession Act and cannot be done away with under any
circumstances. While it is true that in a testamentary disposition, the intent
of the attestor is to be assessed in its proper perspective but that does not,
however, mean and imply non-compliance of statutory requirement. The
intention of the attestor and its paramount importance cannot thwart the
statutory requirement. No doubt the scribe has subscribed his signature but
‘scribe’ in accordance with common English parlance means and implies the
person who writes the document. In England the King’s Secretary is
RSA No.2152 of 1989 11
popularly known as Scribaregis. Be that as it may, in common parlance an
attribute of scribe as a mere writer does not stretch the matter further. In the
contextual facts, while the writer did, in fact, subscribe his signature but the
same does not underrate the statutory requirement of attestation. The
strenuous submissions made in support of the appeal that attesting witnesses
have no other role to play but to subscribe their signatures in order to prove
the genuineness of the Will, therefore, cannot be accepted.
In view of the settled proposition of law and the findings
recorded above, the documents which are said to have been ignored by the
learned lower appellate court were of no relevance as the
defendant/appellant failed to prove the due execution of the Will.
Learned lower appellate court was, thus, right in reversing the
finding of the learned trial court on issue No.3.
The substantial question of law raised is, thus, answered
against the appellant/defendant.
Consequently, the appeal is ordered to be dismissed but with
no order as to costs.
2.02.2009 (Vinod K.Sharma) rp Judge