{"id":237110,"date":"2009-02-02T00:00:00","date_gmt":"2009-02-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/budh-singh-vs-gian-kaur-ors-on-2-february-2009"},"modified":"2018-04-30T18:57:06","modified_gmt":"2018-04-30T13:27:06","slug":"budh-singh-vs-gian-kaur-ors-on-2-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/budh-singh-vs-gian-kaur-ors-on-2-february-2009","title":{"rendered":"Budh Singh vs Gian Kaur & Ors on 2 February, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Budh Singh vs Gian Kaur & Ors on 2 February, 2009<\/div>\n
RSA No.2152 of 1989                                          1\n\n\n\n      IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                     CHANDIGARH\n\n\n\n\n                                     RSA No.2152 of 1989\n\n                                     Date of Decision: 2.2.2009\n\n\n\nBudh Singh                                             ..Appellant\n\n                        Vs.\n\nGian Kaur & Ors.                                       ..Respondents\n\n\n\n\nCoram: Hon'ble Mr. Justice Vinod K.Sharma\n\n\n\n\nPresent:     Mr.Harbhagwan Singh, Sr. Advocate,\n             with Mr.Amit K.Singh, Advocate,\n             for the appellant.\n\n             Mr.Animesh Sharma, Advocate,\n             for the respondents.\n\n                        ---\n\n      1.     Whether Reporters of Local Newspapers may\n             be allowed to see the judgment?\n\n      2.     To be referred to the Reporters or not?\n\n      3.     Whether the judgment should be reported in\n             Digest?\n\n                               ---\n\nVinod K.Sharma,J. (Oral)\n<\/pre>\n
             The defendant\/appellant by way of this regular second appeal
\n RSA No.2152 of 1989                                             2<\/span><\/p>\n
has challenged the judgment and decree dated 25.5.1989 passed by the<\/p>\n
learned lower appellate court decreeing the suit of the plaintiff\/respondents<\/p>\n
for declaration.\n<\/p>\n
             The plaintiff\/respondents filed a suit    for declaration to the<\/p>\n
effect that they are owners in possession of 80 kanals 9 marlas of land<\/p>\n
described in the head-note      of the plaint, being legal heirs of Jamita<\/p>\n
deceased. In the alternative decree for possession was prayed for.<\/p>\n
             The plaintiff\/respondents pleaded that the land in dispute was<\/p>\n
owned by Jamita son of Julli, who was next collateral of the plaintiffs.<\/p>\n
Jamita went out of village, more than 17 years back and never came back in<\/p>\n
the village. The plaintiff\/respondents being the next collateral of the<\/p>\n
deceased has been in possession of the land in suit. Jamita deceased was<\/p>\n
said to be issueless and unmarried and further that defendant-appellant had<\/p>\n
no relationship with Jamita. Plaintiffs claimed that the defendant was<\/p>\n
threatening to alienate the suit land by way of sale\/mortgage etc by claiming<\/p>\n
that Will dated 17.4.1984 was executed in his favour and the mutation of the<\/p>\n
said Will also stood sanctioned in his favour. The plaintiff\/respondents<\/p>\n
challenged the Will on the plea that Jamita never executed any Will in<\/p>\n
favour of the defendant and if any such Will is proved the same is null and<\/p>\n
void and not binding against the interest of the plaintiff\/respondents.<\/p>\n
             The defendant\/appellant contested the suit by controverting the<\/p>\n
material facts. It was the case of the appellant\/defendant that the plaintiffs<\/p>\n
were neither the owners nor in possession of the suit land and therefore, the<\/p>\n
suit for declaration and permanent injunction was not maintainable. It was
\n RSA No.2152 of 1989                                              3<\/span><\/p>\n
claimed by the defendant that he used to render services to the deceased<\/p>\n
Jamita who executed a registered Will in favour of the defendant on<\/p>\n
17.4.1984. The defendant claimed that after the death of Jamita he was in<\/p>\n
possession of the land in dispute as a owner. Locus standi of the<\/p>\n
plaintiff\/respondent to file the suit was also challenged.<\/p>\n
             On the pleadings of the parties learned trial court was pleased<\/p>\n
to frame the following issues:-\n<\/p>\n
             1. Whether the plaintiffs are the heirs of Jamita deceased and<\/p>\n
                have locus standi to file the suit? OPP<\/p>\n<\/blockquote>\n
             2. Whether the plaintiffs are in possession of the suit land and<\/p>\n
                a suit for declaration and injunction is maintainable? OPP<\/p>\n<\/blockquote>\n
             3. Whether Jamita deceased executed a valid will in favour of<\/p>\n
                the defendant on 17.4.1984? OPD<\/p>\n<\/blockquote>\n
             4. If issue No.3 is proved,whether the alleged will is the result<\/p>\n
                of fraud, misrepresentation under influence and concealment<\/p>\n
                of true facts? OPD<\/p>\n<\/blockquote>\n
             5. Whether the plaintiffs are estopped to file this suit by his act<\/p>\n
                and conduct? OPD<\/p>\n<\/blockquote>\n
             6. Whether plaint is properly valued for purposes of court fee<\/p>\n
                and jurisdiction? OPD<\/p>\n<\/blockquote>\n
             7. Whether the plaintiff is entitled to decree for declaration as<\/p>\n
                in alternative in possession? OPP<\/p>\n<\/blockquote>\n
             8. Relief<\/p>\n
             On issue No.1 learned trial court on the basis of evidence led
\n RSA No.2152 of 1989                                            4<\/span><\/p>\n
by the parties held that the plaintiffs were heirs of Jamita deceased and<\/p>\n
thus, had locus standi to file the suit. On issue No.2 in view of the revenue<\/p>\n
record placed on record and also admission of defendant while appearing as<\/p>\n
DW-3 it was held that the plaintiff\/respondents were in possession of the<\/p>\n
suit land and therefore, the suit as framed was maintainable. On issue No.3<\/p>\n
learned trial court held that the defendant examined DW 1 Harjinder Singh<\/p>\n
son of Thakur Singh i.e. the Deed Writer of Will dated 17.4.1984, which<\/p>\n
was said to have been executed by Jamita and scribed by him.<\/p><\/blockquote>\n
            Scribe also stated that the Will was signed by Jamita after<\/p>\n
understanding the contents and attesting witnesses also signed and thumb<\/p>\n
marked the Will. Bhajan Singh and Jagiri were said to be the attesting<\/p>\n
witnesses to the Will. The Will was registered in the office of Sub Registrar.<\/p>\n
            Learned trial court took note of the documentary evidence i.e.<\/p>\n
voter list Ex.D.2 and death certificate of Jamita Ex.D.4. The court held that<\/p>\n
last rites of Jamita were performed by the appellant\/defendant and thus, on<\/p>\n
the basis of evidence brought on record held that execution of Will was<\/p>\n
duly proved. Issue No.3 was accordingly decided in favour of the<\/p>\n
defendant\/appellant and it was held that Jamita deceased executed a valid<\/p>\n
will in favour of the defendant\/appellant on 17.4.1984.<\/p>\n
            Issue No.4 was decided against the plaintiffs for want of<\/p>\n
evidence whereas Issues No.5 and 6 were decided against the defendant as<\/p>\n
not pressed. On issue No.7 in view of the findings recorded on issue No.3 it<\/p>\n
was held    that the plaintiff\/respondents were not entitled to decree for<\/p>\n
declaration and in the alternative for possession. Consequently, the suit was
\n RSA No.2152 of 1989                                           5<\/span><\/p>\n
dismissed.\n<\/p>\n
             The plaintiff\/respondents preferred an appeal against the<\/p>\n
judgment and decree and challenged the findings of learned lower appellate<\/p>\n
court on issue No.3. Learned lower appellate court affirmed the findings on<\/p>\n
issue No.1 and 2. Finding on issue No.3 were reversed by holding as under:-<\/p>\n
             ”     Budh Singh defendant has examined Harjinder Singh the<\/p>\n
             scribe of the Will and Bhajan Singh one of the marginal<\/p>\n
             witnesses. The scribe has confirmed that he recorded the will<\/p>\n
             at the desire of Jamita and had read over to him who signed and<\/p>\n
             thumb marked it. Bhajan Singh and Jagira Sarpanch were the<\/p>\n
             marginal witnesses. In his cross-examination, he has admitted<\/p>\n
             that he had not known Jamita personally. Bhajan Singh<\/p>\n
             attesting witness appeared as DW 2 and stated that the will had<\/p>\n
             been scribed at the desire of Jamita and was attested by Jagira<\/p>\n
             and himself and the will is Ex.D.1. In his cross-examination,<\/p>\n
             however, claimed that he was not present when Jamita signed<\/p>\n
             the will but had gone away to take water.\n<\/p><\/blockquote>\n
                         To my mind Bhajan Singh had made a very safe<\/p>\n
             statement in order to avoid his prosecution with respect to the<\/p>\n
             forgery of the will and putting up a false person as Jamita. He<\/p>\n
             does not claim that the will was signed by Jamita nor does he<\/p>\n
             state that the attested the will after getting any admission of<\/p>\n
             Jamita to have executed the will. In this situation it cannot<\/p>\n
             beheld that the will had been duly attested by two witnesses in
\n RSA No.2152 of 1989                                          6<\/span><\/p>\n
          the presence of the testator and who had seen him signing. In<\/p>\n
          his cross-examination Bhajan Singh claimed that Jamita came<\/p>\n
          to their village in the year 1979 and he had not seen him earlier.<\/p>\n
          That when he first saw him he found Jamita sitting on the road<\/p>\n
          but he did not talk to him though he had seen him talking to<\/p>\n
          other persons,. Budh Singh in his cross-examination claimed<\/p>\n
          that prior to the year 1968 he had never seen Jamita but it was<\/p>\n
          his father who had told him that Jamita was his cousin brother.<\/p>\n
          That it was one Mela in the year 1976 when Jamita met him for<\/p>\n
          the first time and he made inquiries from him and after making<\/p>\n
          inquiries abut the names of his father and grandfather Jamita<\/p>\n
          identified him. This statement can hardly be accepted as<\/p>\n
          correct. To my mind Budh Singh and his father had brought<\/p>\n
          some old man and put him up as Jamita in order to grab the<\/p>\n
          property of Jamita deceased. His statement that Jamita met him<\/p>\n
          in the Mela in the year 1976 is contradicted by Bhajan Singh<\/p>\n
          who claims that he had seen Jamita for the first time in the year<\/p>\n
          1979 and that too sitting on a road where he was wearing<\/p>\n
          clothes of a Sadhu. To my mind Bhajan Singh was conscious of<\/p>\n
          the fact that it was an important thing as to who signed the will<\/p>\n
          as Jamita. The evidence brought for this is not sufficient to<\/p>\n
          hold that it was Jamita son of Julli who had executed the will.<\/p>\n
          If in fact Jamita had returned from his vagrancy on which he<\/p>\n
          went many years ago, and had identified some distant
\n RSA No.2152 of 1989                                            7<\/span><\/p>\n
             collateral, it is unlikely that he did not visit his own village<\/p>\n
             thereafter.\n<\/p><\/blockquote>\n
             10.    In the will it had been scribed that Budh Singh was his<\/p>\n
             nephew but a reference to the pedigree table shows that Budh<\/p>\n
             Singh is not related to Jamita in any of the degrees of the<\/p>\n
             family. It was thus a false recital made in the will and it makes<\/p>\n
             the will all the most suspicious. I accept the argument of Shri<\/p>\n
             Bhag Singh who appears for the plaintiff\/appellants that the<\/p>\n
             will Ex.A.1 was a forgery and not executed by Jamita the last<\/p>\n
             proprietor of the land in suit. The mere fact that the document<\/p>\n
             was got registered by the person who claimed himself to be<\/p>\n
             Jamita and his identify on the basis of Jagira Sarpanch accepted<\/p>\n
             by the Tehsildar, was not sufficient to prove the case of the<\/p>\n
             defendant. I hold the will to be a forge document and I set aside<\/p>\n
             the finding of the trial court on issue No.3 and decide it in<\/p>\n
             favour of the plaintiffs.”<\/p><\/blockquote>\n
             Other issues were not pressed. Consequently the suit filed by<\/p>\n
the plaintiff\/respondents stands decreed.\n<\/p>\n
             Mr.Harbhagwan Singh, learned senior counsel appearing on<\/p>\n
behalf of the appellant raised the following substantial question of law for<\/p>\n
consideration of this court in this appeal:-\n<\/p>\n
             “Whether the lower appellate court has ignored important and<\/p>\n
             vital evidence and has taken into consideration inadmissible<\/p>\n
             evidence while reversing the judgment and decree of the trial
\n RSA No.2152 of 1989                                             8<\/span><\/p>\n
             court?<\/p><\/blockquote>\n
            In support of the substantial question of law learned senior<\/p>\n
counsel appearing on behalf of the appellant vehemently contended that<\/p>\n
the finding recorded by the learned lower appellate court on issue No.3 is<\/p>\n
the outcome of non-consideration of documentary evidence brought on<\/p>\n
record. The contention of the learned senior counsel was that the stand of<\/p>\n
the plaintiff\/respondents that Jamita had gone to foreign country for the last<\/p>\n
17\/18 years stood belied by the documentary evidence brought on record i.e.<\/p>\n
the voter list Ex.D.3 and the death       certificate Ex.D.4. Learned senior<\/p>\n
counsel contended that in case the Ex.D.3 and Ex.D.4 along with oral<\/p>\n
evidence brought on record are considered in true perspective then it has to<\/p>\n
be held that the execution of the Will stood proved and the learned lower<\/p>\n
appellate court, therefore, was not justified in reversing the finding on issue<\/p>\n
No.3.\n<\/p>\n
            Mr.Animesh Sharma, learned counsel appearing on behalf of<\/p>\n
the respondent\/plaintiffs supported the judgment and decree passed by the<\/p>\n
learned lower appellate court and contended that the substantial question of<\/p>\n
law as framed does not arise for consideration. Learned counsel for the<\/p>\n
respondents contended that in the present case learned lower appellate court<\/p>\n
was right in holding that the Will was not proved in terms of Section 63 of<\/p>\n
the Succession Act, 1925 as the only attesting witness produced to prove the<\/p>\n
Will categorically stated that he was not present when Jamita signed the<\/p>\n
Will as he had gone away to take water. The contention therefore, was that<\/p>\n
once the execution was not proved in terms of Section 63 of the Succession
\n RSA No.2152 of 1989                                             9<\/span><\/p>\n
Act issue No.3 was rightly decided against the defendant\/appellant.<\/p>\n
             In support of this contention learned counsel for the<\/p>\n
respondents placed reliance on the judgment of the Hon’ble Supreme Court<\/p>\n
in the case of Girja Datt Singh Vs. Gangotri Datt Singh AIR 1955 SC<\/p>\n
346, wherein Hon’ble Supreme Court has been pleased to lay down that to<\/p>\n
prove the due attestation of the propounder of the Will has to prove that<\/p>\n
the testator signed the Will, and further that they signed the same in the<\/p>\n
presence of the testator.\n<\/p>\n
             Reliance was also placed on the judgment of Hon’ble Supreme<\/p>\n
Court in the case of Apoline D’Souza Vs. John D’Souza 2007 (3) RCR<\/p>\n
(Civil) 260, wherein Hon’ble Supreme Court has been pleased to lay down<\/p>\n
that mere fact that the Will was registered one would not dispense with the<\/p>\n
requirements of proof of due execution and attestation of the Will.<\/p>\n
             Reliance was also placed on the judgment of Hon’ble Madhya<\/p>\n
Pradesh High Court in the case of Virendra Singh Pal Vs. Kashibai 1998<\/p>\n
(4) RCR (Civil) 236 wherein the Hon’ble Madhya Pradesh High Court has<\/p>\n
been pleased to lay down that if executant affixed thumb mark subsequent<\/p>\n
to attestation by two witnesses on Will, said attestation is not attestation in<\/p>\n
the eye of law and Will deserves to be ignored.\n<\/p>\n
             Mr.Animesh Sharma, learned counsel appearing on behalf of<\/p>\n
the respondents also relied upon the judgment of Hon’ble Supreme Court in<\/p>\n
the case of Janki Narayan Bhoir Vs. Narayan Namdeo Kadam 2003 (1)<\/p>\n
RCR (Civil) 409 to contend that a person propounding the Will has got to<\/p>\n
prove that the Will was duly and validly executed. The Will cannot be
\n RSA No.2152 of 1989                                            10<\/span><\/p>\n
proved simply by proving that signatures on the Will were that of the<\/p>\n
testator but must also prove that attestations were also made properly as<\/p>\n
required by Clause (c) of Section 63 of the Succession Act.<\/p>\n
            Finally reliance was placed on the judgment of Hon’ble Madras<\/p>\n
High Court in the case of Rengasamy Vs. Rugmini and others 2007 (5)<\/p>\n
RCR (Civil) 72 to contend that though the Will could be proved by<\/p>\n
examining one attestor to the Will but if in the cross-examination he admits<\/p>\n
that he did not see the testator signing the Will the execution of the Will<\/p>\n
would not be proved.\n<\/p>\n
            The contention of the learned counsel for the respondents is<\/p>\n
that the case in hand is squarely covered by the judgment of Hon’ble<\/p>\n
Madras High Court in the case of      Rengasamy Vs. Rugmini and others<\/p>\n
(supra).\n<\/p>\n
            On consideration of matter, I find force in the contentions<\/p>\n
raised by the learned counsel for the respondents.\n<\/p>\n
            The requirement of attestation is statutory in nature, in view of<\/p>\n
Section 63 of Succession Act and cannot be done away with under any<\/p>\n
circumstances. While it is true that in a testamentary disposition, the intent<\/p>\n
of the attestor is to be assessed in its proper perspective but that does not,<\/p>\n
however, mean and imply non-compliance of statutory requirement. The<\/p>\n
intention of the attestor and its paramount importance cannot thwart the<\/p>\n
statutory requirement. No doubt the scribe has subscribed his signature but<\/p>\n
‘scribe’ in accordance with common English parlance means and implies the<\/p>\n
person who writes the document. In England the King’s Secretary is
\n RSA No.2152 of 1989                                              11<\/span><\/p>\n
popularly known as Scribaregis. Be that as it may, in common parlance an<\/p>\n
attribute of scribe as a mere writer does not stretch the matter further. In the<\/p>\n
contextual facts, while the writer did, in fact, subscribe his signature but the<\/p>\n
same does not underrate the statutory requirement of           attestation. The<\/p>\n
strenuous submissions made in support of the appeal that attesting witnesses<\/p>\n
have no other role to play but to subscribe their signatures in order to prove<\/p>\n
the genuineness of the Will, therefore, cannot be accepted.<\/p>\n
              In view of the settled proposition of law and the findings<\/p>\n
recorded above, the documents which are said to have been ignored by the<\/p>\n
learned     lower   appellate   court   were    of   no   relevance    as   the<\/p>\n
defendant\/appellant failed to prove the due execution of the Will.<\/p>\n
              Learned lower appellate court was, thus, right in reversing the<\/p>\n
finding of the learned trial court on issue No.3.\n<\/p>\n
              The substantial question of law raised is, thus, answered<\/p>\n
against the appellant\/defendant.\n<\/p>\n
              Consequently, the appeal is ordered to be dismissed but with<\/p>\n
no order as to costs.\n<\/p>\n
2.02.2009                                            (Vinod K.Sharma)\nrp                                                        Judge\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Budh Singh vs Gian Kaur & Ors on 2 February, 2009 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-237110","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nBudh Singh vs Gian Kaur & Ors on 2 February, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/budh-singh-vs-gian-kaur-ors-on-2-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Budh Singh vs Gian Kaur & Ors on 2 February, 2009 - 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