RSA No.658 of 1989 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.658 of 1989
Date of Decision: 16.01.2009
Bukan Singh (dead through L.Rs.) ..Appellant
Vs.
Pakhar Singh (Dead through L.Rs.) & Anr. ..Respondents
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.G.K.Chawla, Advocate,
for the appellants.
Mr.Bhag Singh, Advocate,
for the respondents.
Vinod K.Sharma,J. (Oral)
This regular second appeal is directed against the judgments
and decree dated 14.2.1985 and 6.9.1988 passed by the learned courts
below vide which suit filed by the plaintiff-appellant for declaration and
injunction on the basis of Will said to have been executed by Jagtar Singh
has been ordered to be dismissed.
The plaintiff/appellant instituted a suit for declaration and
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injunction on the allegations that land measuring 9 kanals 16 marlas fully
described in the head-note of the plaint situated at village Nawanpind Jattan
Tehsil Nakodar District Jalandhar was owned and possessed by Jagtar
Singh.
Plaintiff claimed that Jagtar Singh deceased was living with the
plaintiff and was being looked after by him. Jagtar Singh was issueless and
he executed a valid Will dated 18.6.1982 in favour of the plaintiff thereby
bequeathing his entire estate including the land in dispute in favour of the
plaintiff.
Jagtar Singh died on 28.6.1982 and since the date of his death
the plaintiff was in possession of the land in suit as owner on the basis of
Will dated 18.6.1982. It was claimed that the defendants i.e. other legal
heirs of Jagtar Singh wanted to dispossess the plaintiff from the land in
dispute on the allegations that mutation to the extent of 2/3rd share stood
sanctioned in favour of the defendants qua the estate left by Jagtar Singh.
The suit was contested by the defendants wherein a preliminary
objection was taken that the plaintiff had not come to the court with clean
hands. The plaintiff was said to be neither the owner nor in possession of
the property. It was also claimed that Jagtar Singh had not executed any
Will and if any Will is on the record the same is the outcome of fraud,
misrepresentation, concealment of material facts and not a genuine
document and therefore, not binding on the rights of the defendants. It was
claimed that the mutation was rightly sanctioned.
On the pleading of the parties the learned trial court was
pleased to frame the following issues:-
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1. Whether Jagtar Singh executed a valid Will dated
18.6.1982 in favour of the plaintiff, who is in possession
thereof as owner? OPP
2. Whether the plaintiff is estopped to file the suit by his act
and conduct? OPD
3. Whether by way of alternative relief, the plaintiff is
entitled to the joint possession of the land? OPP
4. Relief.
The main dispute between the parties was resting on the Will
dated 18.6.1982, certified copy of which was produced on the file as Ex.P.2.
In support of the Will the plaintiff/appellant produced Karam Singh as PW
3 and Devinder Singh as PW 4, who was scribe of the Will as well as Ajit
Singh PW5, member Panchayat, the other attesting witness of the Will.
The learned trial court was pleased to hold that the plaintiff was
bound to prove not only due execution of the Will but also the fact that the
deceased was in sound disposing state of mind and the statement was also
required to fulfill the ingredients of Section 63 of the Indian Succession
Act regarding the execution of the Will. The learned trial court observed
that he was also bound to remove all reasonable doubts concerning the Will.
Learned lower appellate court court found that the Will was surrounded by
the following suspicious circumstances.
” (i) The date 18.6.1982 is written in a different ink than the
body writing. Where the ink is different, it is suspicious
circumstances as laid in AIR 1986 Bombay 566.
(ii) Karam Singh PW 3 is the attesting witness of the Will
RSA No.658 of 1989 4and the mutation of inheritance of Jagtar Singh deceased was
got incorporated with the Patwari-Halqa at the instance of
Karam Singh himself on 1.9.1982.
Had the document been in existence on 1.9.1982 and
Karam Singh being a witness to the document, there was no
question of his approaching the revenue authorities and getting
the mutation entered on the basis of natural succession.
(iii) The Will is not written by a regular deed-writer Dharam
Pal PW 4 is not a regular deed writer. The will is purported to
have been written in the village.
Although it is not the Sine Qua Non of Law that Will
must be scribed from a regular deed Writer or it should be got
registered. However, getting the solemn document like the Will
executed from a regular deed writer and getting the same
registered, gives sanctity to the document. In the present case,
the appellant was general attorney of the deceased. The
Photostat copy of the power of attorney shows it was registered
on 30.11.1976. The factum of the deceased having executed a
general power of attorney in favour of the appellant from a
regular deed writer and getting the same registered goes to
show that the deceased was well conversant with the legal
proposition and when he had given the general power of
attorney duly registered from the office of the Sub
registrar,there was no reason for the deceased to have got
scribed the solemn document like the Will in his village in
RSA No.658 of 1989 5favour of the appellant; The scribing of the Will by Dharam Pal
PW a lay man, under the circumstances casts doubt and is
contrary to the natural conduct and human probabilities as
discussed above.
(iv) The Will contains thumb impression of the deceased. At
the cost of repetition it may be observed that the original power
of attorney duly executed by deceased was in possession, power
and control of the appellant. He had not intentionally produced
the original in the trial court, rather the certified copy of the
same was produced as Mark A. It is the ardent of the
propounder to prove the execution of the Will. The science of
thumb impression is an exact science. When the
plaintiff/appellant was in possession of a registered document
containing the thumb impression of the deceased, it was the
duty of the plaintiff to have got compared the thumb
impression of deceased Jagtar Singh on the Will with the
registered power of attorney. The withholding of the registered
power of attorney by the plaintiff and producing certified copy
thereof is a highly dubious circumstances, speaking against the
conduct of the plaintiff/appellant.
(v) Karam Singh, Devinder Pal Singh and Ajit Singh had
appeared as witnesses before the Assistant Collector Ist Grade
in the mutation proceedings which was contested one and their
statements in the suit suffer from material discrepancies have
been fully detailed in the judgment of the lower court.
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(vi) The Will is contained at one page and under the body
writing, there is only the signatures of the scribe. The thumb
impression as well as the attestation of both the witnesses is on
the left hand side of the paper. Execution thus is not proved.”
The learned court observed that in present case it was not
proved on record that the Will was signed by the executant in the presence
of the attesting witnesses and that each of the witnesses had signed in the
presence of the testator as required under Section 63 of the Indian Evidence
Act. Thus, the learned court was pleased to decide issue No.1 against the
plaintiff/appellant and consequent thereto the suit was ordered to be
dismissed.
The findings of fact recorded by the learned trial court stand
affirmed by the learned lower appellate court.
Learned counsel for the appellant vehemently contends that
the findings recorded by the learned courts below cannot be sustained as
suspicious circumstances pointed out could not be a ground to reject the
Will which otherwise was proved to have been executed by the deceased
Jagtar Singh as proved by the attesting witnesses as well as the scribe of the
Will.
However, this contention of the learned counsel for the
appellant cannot be accepted. The learned courts below rightly observed
that date on the Will is in different ink than that of the body, which was a
strong suspicious circumstance. It may further be noticed that the Will was
executed at very early age of the executant still the same was not got
registered for the reasons best known to the parties.
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Karam Singh, one of the attesting witnesses, was said to be
interested party as he helped the plaintiff/appellant in getting mutation
sanctioned.
The learned courts below were, thus, fully justified in
disbelieving the statement of Karam Singh PW 3 in view of his
participation in getting mutation sanctioned in favour of the natural heirs.
Learned lower courts were justified to come to a conclusion
that in case the said Will attested by Karam Singh was in existence, there
was no reason for him to participate in getting the mutation sanctioned in
favour of all the natural heirs.
The learned courts below held that the Will was not written by
the regular deed writer as PW 5 was not shown to be a regular deed writer.
The court further observed that the Will was thumb marked whereas the
plaintiff was in possession of the power of attorney executed by the
deceased which was intentionally not produced which was a registered
document.
The learned courts below, therefore, rightly observed that it was
for the plaintiff to have got thumb marks compared with the registered
document i.e. the power of attorney which was in possession of the
plaintiff/appellant. The learned courts held that Karam Singh, Devinder Pal
and Ajit Singh had appeared before the revenue court in mutation
proceedings where the stand was different to the one taken in the court. The
learned courts below also observed that the format of Will also raised
suspicion.
Both the courts below recorded a concurrent finding of fact
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that the Will procured by the plaintiff/appellant was not a genuine
document, therefore it was held that the mutation sanctioned as per natural
succession was a valid document and the declaration claimed by the
plaintiff thus was rightly rejected.
Learned counsel for the appellant pointed out that one of the
natural heirs through her legal representatives has entered into a
compromise with the appellant and therefore, has offered to surrender her
share in favour of the plaintiff/appellant.
Learned counsel for the appellant contends that the substantial
question of law for consideration of this court in this appeal is:
“Whether the judgment and decree is outcome of misreading of
evidence on record, thus, perverse?
However, it may be noticed that the findings have been
recorded on appreciation of evidence which cannot be said to be perverse or
the outcome of misreading of evidence.
This court in regular second appeal cannot reappraise the
evidence and come to a different conclusion in the absence of proof of
misreading of evidence by the learned courts below or the finding being
perverse.
Thus, the substantial question of law as claimed by the
plaintiff/appellant deserves to be answered against him.
No merit.
Dismissed but with no order as to costs.
16.01.2009 (Vinod K.Sharma)
rp Judge
RSA No.658 of 1989 9