RSA No.4131 of 2002(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.4131 of 2002(O&M)
Date of decision: 17.2.2009
Gurmel Singh ......Appellant
Versus
Sohan Singh and others ......Respondents
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr. Rohit Ahuja, Advocate for the appellant.
Mr. Amit Jain, Advocate for the respondents.
* * *
Rakesh Kumar Garg, J.
This is plaintiff’s second appeal challenging the judgment and
decree of the Lower Appellate Court whereby on an appeal filed by the
defendant-respondents, the judgment and decree of the trial Court dated
18.1.1997 decreeing the suit of the plaintiff-appellant for declaration with
consequential relief of permanent injunction to the effect that the plaintiff is
the owner in possession of the land in dispute, has been set aside and suit
of the plaintiff-appellant has been dismissed.
As per the averments made in the plaint, the estate of one
Gurbax Singh was the subject matter of dispute in the suit. The suit was
filed by the appellant claiming inheritance to the estate of Gurbax Singh on
the basis of Will dated 25.5.1982 allegedly executed by Gurbax Singh in
his favour. The plaintiff is the son of the real brother of Gurbax Singh
deceased and was allegedly rendering services to the deceased and the
Will was executed out of love and affection for him. Gurbax Singh died on
1.6.1982 and his last rites were performed by him. Rao Kaur defendant
No.1 (predecessor-in-interest of respondents No.1 to 3) was the real sister
of Gurbax Singh who was married to one Santa Singh of village Dholowal,
RSA No.4131 of 2002(O&M) 2
Tehsil and District Hoshiarpur about more than 55 years ago. However,
she got the mutation of inheritance of Gurbax Singh sanctioned in her
favour taking advantage of the absence of the appellant. He could not get
the mutation sanctioned on the basis of the Will after the death of Gurbax
Singh as the Will was kept at his house and when in the year 1983, he
came to the village he found that the Will dated 25.5.1982 was misplaced.
The appellant, thus, claimed a decree for declaration, challenging the rights
of defendants No.2 to 13 who are transferees of the property in question
from Rao Kaur-defendant No.1.
The defendants contested the suit raising the objections that
the suit was barred by time and that the appellant was estopped by his act
and conduct from filing the suit. The Will dated 25.5.1982 set up by the
appellant was termed as a forged and fabricated document. It was averred
that defendant No.14 who was the attorney of defendant No.1 allegedly
sold the land to different persons and even the appellant had himself
purchased some land from her.
In the replication filed by the appellant, the appellant further
explained the reasons for non-production of the Will at a earlier stage.
According to him, the house of the appellant had fallen and the luggage of
the house remained under the debris of the fallen structure. Defendant
No.1 was stated to be under the influence of defendant No.14. It was
further stated that the sale deed in favour of the appellant was executed
without any consideration. The trial Court framed the following issues from
the pleadings of the parties
“1. Whether Gurbax Singh executed a valid Will dated
25.5.1982? If so its effect? OPP.
2. Whether the plaintiff is the owner on the basis of
the Will dated 25.5.1982 executed by Gurbax Singh, in
RSA No.4131 of 2002(O&M) 3
his favour? OPP.
3. Whether the suit is barred by limitation? OPD.
4. Whether plaintiff is estopped from filing the suit by
his act, conduct and admissions? OPD
5. Whether the plaintiff has no locus-standi to file the
suit? OPD.
6. Whether the suit is not maintainable against
defendants No.2 to 13? OPD.
7. Relief.”
The parties produced their respective evidence and after
hearing learned counsel for the parties the suit of the appellant was
decreed vide judgment and decree dated 10.1.1997 passed by the trial
Court upholding the Will set up by the appellant.
Feeling aggrieved against the judgment and decree of the trial
Court, defendants preferred an appeal which was accepted by the
Additional District Judge, Hoshiapur vide impugned judgment and decree
dated 20.7.2002 which resulted into dismissal of the suit of the plaintiff.
While accepting the appeal, the Lower Appellate Court recorded a finding
of fact that Will in question set up by the appellant was not a genuine
document and the same was shrouded with many suspicious
circumstances.
Feeling aggrieved from the judgment and decree of the Lower
Appellate Court, the plaintiff has filed the instant appeal challenging the
same.
Learned counsel for the appellant has vehemently argued that
numerous circumstances have been established on record from which it
can be inferred that the deceased had every reason to execute the Will in
favour of the plaintiff-appellant and the execution of the Will had been
RSA No.4131 of 2002(O&M) 4
proved by the appellant and there is no evidence on record to support the
plea of the respondents that the alleged Will was a forged document and
therefore, the Lower Appellate Court has erred at law while accepting the
appeal filed by the defendant-respondents and the same is liable to be set
aside. In support of his arguments, learned counsel for the appellant has
placed reliance upon the judgment of this Court reported as Charan Singh
v. Bissi (Smt.) 1992(2) RRR 502.
On the other hand, learned counsel for the defendant-
respondents has supported the findings of the Lower Appellate Court and
has argued that on appreciation of evidence on record, the Lower Appellate
Court has recorded a finding of fact that the Will in question is full of
suspicious circumstances and, therefore, the same cannot be relied upon
simply because execution thereof has been duly proved and thus, the
appeal is without any merit and the same is liable to be dismissed.
I have heard learned counsel for the parties and perused the
record of the appeal.
The fact that the deceased was living with the appellant who
was rendering him services and that defendant No.1 Rao Kaur was
married many years before the death of Gurbax Singh are no doubt the
circumstances which may support the argument that Gurbax Singh could
execute the Will of his estate in favour of the appellant but that by itself
cannot be a ground to accept its authenticity unless the Will is proved to be
a genuine document. The Lower Appellate Court while accepting the
appeal of defendant-respondents noticed many circumstances on the
basis of which the Will in question was held to be shrouded with suspicious
circumstances namely, the Will Ex.P-2 is dated 25.5.1982 and admittedly
Gurbax Singh died a week later i.e. 1.6.1982. The Will is on the plain
paper and has not been scribed by a Deed Writer. The scribe of the Will is
RSA No.4131 of 2002(O&M) 5
Harjinder Singh PW-5 who is none else but the brother in law of Gurmel
Singh-appellant; the appellant was not present at the time of death as he
was serving in the Army; wife of the appellant was present in the house;
when the Will was executed and admittedly the appellant purchased some
land from Rao Kaur-defendant No.1 through her attorney many years
before the institution of the suit.
The Lower Appellate Court also observed that the appellant in
his cross-examination had admitted that he purchased 1 kanal 19 marlas of
land from Rao Kaur for Rs.2,000/- taking her to be the owner of the land
though he tried to explain that he got this land purchased vide sale deed
because the Will was not traceable by that time. Defendant No.1 executed
two more sale deeds dated 13.6.1989 through her attorney, copies of
which are Ex.PW2/C and PW2/D in favour of defendants No.3 and 4.
Chanan Singh PW-2 who is the marginal witness of the Will of the year
1982 had attested both the sale deeds. In his cross-examination PW-2
Chanan Singh has stated that he informed the vendees of these sale
deeds that there was a Will in favour of Gurmel Singh executed by Gurbax
Singh but they still purchased the land from Rao Kaur. The above fact
clearly shows that the testimony of PW-2 Chanan Singh, the attesting
witness of the Will, was not trustworthy. There is another document
Ex.PW2/A. Vide this document admittedly on 27.4.1990, a partition of land
took place between Rao Kaur and appellant. This was another occasion
for the appellant to challenge the right of Rao Kaur about inheritance to the
estate of Gurbax Singh. The present suit was filed in the year 1994 on the
basis of the Will in question, Thus, the Will saw the light of the day after
the death of the testator Gurbax Singh. The explanation that the
household articles belonging to the appellant came under the debris of
fallen portion does not appeal to reason. The plaintiff-appellant had
RSA No.4131 of 2002(O&M) 6
produced in evidence one letter Ex.PW8/A written by Gurbax Singh to his
Commanding Officer in the year 1974 wherein Gurbax Singh mentioned
him as his son but it is strange that the appellant was able to hold this letter
of Gurbax Singh deceased in safe custody for a period of about 20 years
as the suit was filed in the year 1994 but he was careless about the
important document of Will on the basis of which he claimed inheritance.
Thus, taking in the view the aforesaid circumstances proved
on record, the Lower Appellate Court held that the Will in question is not a
genuine document as the same is full of suspicious circumstances. It is
well settled that though the execution of the Will is proved yet the same can
be discarded if it is full of suspicious circumstances. The judgment relied
upon by the learned counsel for the appellant is distinguishable on facts as
in that case there was no suspicious circumstance surrounding the Will.
For the reasons recorded above, I find no merit in this appeal.
No substantial question of law arises.
Dismissed.
February 17, 2009 (RAKESH KUMAR GARG) ps JUDGE