{"id":59554,"date":"2009-01-16T00:00:00","date_gmt":"2009-01-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bukan-singh-dead-through-l-rs-vs-pakhar-singh-dead-through-l-rs-on-16-january-2009"},"modified":"2015-05-26T02:05:24","modified_gmt":"2015-05-25T20:35:24","slug":"bukan-singh-dead-through-l-rs-vs-pakhar-singh-dead-through-l-rs-on-16-january-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bukan-singh-dead-through-l-rs-vs-pakhar-singh-dead-through-l-rs-on-16-january-2009","title":{"rendered":"Bukan Singh (Dead Through L.Rs.) vs Pakhar Singh (Dead Through L.Rs.) … on 16 January, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Bukan Singh (Dead Through L.Rs.) vs Pakhar Singh (Dead Through L.Rs.) … on 16 January, 2009<\/div>\n
RSA No.658 of 1989                                           1\n\n\n      IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                     CHANDIGARH\n\n\n\n\n                                      RSA No.658 of 1989\n\n                                      Date of Decision: 16.01.2009\n\n\n\n\nBukan Singh (dead through L.Rs.)                       ..Appellant\n\n                        Vs.\n\nPakhar Singh (Dead through L.Rs.) & Anr.               ..Respondents\n\n\n\n\nCoram: Hon'ble Mr. Justice Vinod K.Sharma\n\n\n\n\nPresent:    Mr.G.K.Chawla, Advocate,\n            for the appellants.\n\n            Mr.Bhag Singh, Advocate,\n            for the respondents.\n\n\nVinod K.Sharma,J. (Oral)\n<\/pre>\n
            This regular second appeal is directed against the judgments<\/p>\n
and decree dated 14.2.1985 and 6.9.1988       passed by the learned courts<\/p>\n
below vide which suit filed by the plaintiff-appellant for declaration and<\/p>\n
injunction on the basis of Will said to have been executed by Jagtar Singh<\/p>\n
has been ordered to be dismissed.\n<\/p>\n
            The plaintiff\/appellant   instituted a suit for declaration and
\n RSA No.658 of 1989                                              2<\/span><\/p>\n
injunction on the allegations that land measuring 9 kanals 16 marlas fully<\/p>\n
described in the head-note of the plaint situated at village Nawanpind Jattan<\/p>\n
Tehsil Nakodar District Jalandhar was owned and possessed by Jagtar<\/p>\n
Singh.\n<\/p>\n
             Plaintiff claimed that Jagtar Singh deceased was living with the<\/p>\n
plaintiff and was being looked after by him. Jagtar Singh was issueless and<\/p>\n
he executed a valid Will dated 18.6.1982 in favour of the plaintiff thereby<\/p>\n
bequeathing his entire estate including the land in dispute in favour of the<\/p>\n
plaintiff.\n<\/p>\n
             Jagtar Singh died on 28.6.1982 and since the date of his death<\/p>\n
the plaintiff was in possession of the land in suit as owner on the basis of<\/p>\n
Will dated 18.6.1982. It was claimed that the defendants i.e. other legal<\/p>\n
heirs of Jagtar Singh wanted to dispossess the plaintiff from the land in<\/p>\n
dispute on the allegations that mutation to the extent of 2\/3rd share stood<\/p>\n
sanctioned in favour of the defendants qua the estate left by Jagtar Singh.<\/p>\n
             The suit was contested by the defendants wherein a preliminary<\/p>\n
objection was taken that the plaintiff had not come to the court with clean<\/p>\n
hands. The plaintiff was said to be neither the owner nor in possession of<\/p>\n
the property. It was also claimed that Jagtar Singh had not executed any<\/p>\n
Will and if any Will is on the record the same is the outcome of fraud,<\/p>\n
misrepresentation, concealment of material facts and not a genuine<\/p>\n
document and therefore, not binding on the rights of the defendants. It was<\/p>\n
claimed that the mutation was rightly sanctioned.<\/p>\n
             On the pleading of the parties      the learned trial court was<\/p>\n
pleased to frame the following issues:-\n<\/p>\n
 RSA No.658 of 1989                                               3<\/span><\/p>\n
            1.     Whether Jagtar Singh executed a valid Will dated<\/p>\n
                   18.6.1982 in favour of the plaintiff, who is in possession<\/p>\n
                   thereof as owner? OPP<\/p>\n<\/blockquote>\n
            2.     Whether the plaintiff is estopped to file the suit by his act<\/p>\n
                   and conduct? OPD<\/p>\n<\/blockquote>\n
            3.     Whether by way of alternative relief, the plaintiff is<\/p>\n
                   entitled to the joint possession of the land? OPP<\/p>\n<\/blockquote>\n
             4.    Relief.<\/p><\/blockquote>\n
            The main dispute between the parties was resting on the Will<\/p>\n
dated 18.6.1982, certified copy of which was produced on the file as Ex.P.2.<\/p>\n
In support of the Will the plaintiff\/appellant produced Karam Singh as PW<\/p>\n
3 and Devinder Singh as PW 4, who was scribe of the Will as well as Ajit<\/p>\n
Singh PW5, member Panchayat, the other attesting witness of the Will.<\/p>\n
            The learned trial court was pleased to hold that the plaintiff was<\/p>\n
bound to prove not only due execution of the Will but also the fact that the<\/p>\n
deceased was in sound disposing state of mind and the statement was also<\/p>\n
required to fulfill the ingredients of Section 63 of the Indian Succession<\/p>\n
Act regarding the execution of the Will. The learned trial court observed<\/p>\n
that he was also bound to remove all reasonable doubts concerning the Will.<\/p>\n
Learned lower appellate court court found that the Will was surrounded by<\/p>\n
the following suspicious circumstances.\n<\/p>\n
            ” (i) The date 18.6.1982 is written in a different ink than the<\/p>\n
            body writing. Where the ink is different, it is suspicious<\/p>\n
            circumstances as laid in AIR 1986 Bombay 566.<\/p>\n<\/blockquote>\n
            (ii)   Karam Singh PW 3 is the attesting witness of the Will
\n RSA No.658 of 1989                                          4<\/span><\/p>\n
         and the mutation of inheritance of Jagtar Singh deceased was<\/p>\n
         got incorporated with the Patwari-Halqa at the instance of<\/p>\n
         Karam Singh himself on 1.9.1982.\n<\/p><\/blockquote>\n
                 Had the document been in existence on 1.9.1982 and<\/p>\n
         Karam Singh being a witness to the document, there was no<\/p>\n
         question of his approaching the revenue authorities and getting<\/p>\n
         the mutation entered on the basis of natural succession.<\/p>\n<\/blockquote>\n
         (iii)   The Will is not written by a regular deed-writer Dharam<\/p>\n
         Pal PW 4 is not a regular deed writer. The will is purported to<\/p>\n
         have been written in the village.\n<\/p><\/blockquote>\n
                 Although it is not the Sine Qua Non of Law that Will<\/p>\n
         must be scribed from a regular deed Writer or it should be got<\/p>\n
         registered. However, getting the solemn document like the Will<\/p>\n
         executed from a regular deed writer and getting the same<\/p>\n
         registered, gives sanctity to the document. In the present case,<\/p>\n
         the appellant was general attorney of the deceased. The<\/p>\n
         Photostat copy of the power of attorney shows it was registered<\/p>\n
         on 30.11.1976. The factum of the deceased having executed a<\/p>\n
         general power of attorney in favour of the appellant from a<\/p>\n
         regular deed writer and getting the same registered goes to<\/p>\n
         show that the deceased was well conversant with the legal<\/p>\n
         proposition and when he had given the general power of<\/p>\n
         attorney duly registered from the office of the Sub<\/p>\n
         registrar,there was no reason for the deceased to have got<\/p>\n
         scribed the solemn document like the Will in his village in
\n RSA No.658 of 1989                                                  5<\/span><\/p>\n
         favour of the appellant; The scribing of the Will by Dharam Pal<\/p>\n
         PW a lay man, under the circumstances casts doubt and is<\/p>\n
         contrary to the natural conduct and human probabilities as<\/p>\n
         discussed above.\n<\/p><\/blockquote>\n
         (iv)   The Will contains thumb impression of the deceased. At<\/p>\n
         the cost of repetition it may be observed that the original power<\/p>\n
         of attorney duly executed by deceased was in possession, power<\/p>\n
         and control of the appellant. He had not intentionally produced<\/p>\n
         the original in the trial court, rather the certified copy of the<\/p>\n
         same was produced as Mark A. It is                 the ardent of the<\/p>\n
         propounder to prove the execution of the Will. The science of<\/p>\n
         thumb    impression     is        an    exact   science.       When   the<\/p>\n
         plaintiff\/appellant was in possession of a registered document<\/p>\n
         containing the thumb impression of the deceased, it was the<\/p>\n
         duty of the plaintiff        to        have got compared the thumb<\/p>\n
         impression of deceased Jagtar Singh on the Will with the<\/p>\n
         registered power of attorney. The withholding of the registered<\/p>\n
         power of attorney by the plaintiff and producing certified copy<\/p>\n
         thereof is a highly dubious circumstances, speaking against the<\/p>\n
         conduct of the plaintiff\/appellant.\n<\/p><\/blockquote>\n
         (v)    Karam Singh, Devinder Pal Singh and Ajit Singh had<\/p>\n
         appeared as witnesses before the Assistant Collector Ist Grade<\/p>\n
         in the mutation proceedings which was contested one and their<\/p>\n
         statements in the suit suffer from material discrepancies have<\/p>\n
         been fully detailed in the judgment of the lower court.
\n RSA No.658 of 1989                                              6<\/span><\/p>\n<\/blockquote>\n
             (vi)   The Will is contained at one page and under the body<\/p>\n
             writing, there is only the signatures of the scribe. The thumb<\/p>\n
             impression as well as the attestation of both the witnesses is on<\/p>\n
             the left hand side of the paper. Execution thus is not proved.”<\/p><\/blockquote>\n
             The learned court observed that in present case it was not<\/p>\n
proved on record that the Will was signed by the executant in the presence<\/p>\n
of the attesting witnesses and that each of the witnesses had signed in the<\/p>\n
presence of the testator as required under Section 63 of the Indian Evidence<\/p>\n
Act. Thus, the learned court was pleased to decide issue No.1 against the<\/p>\n
plaintiff\/appellant and consequent thereto the suit was ordered to be<\/p>\n
dismissed.\n<\/p>\n
             The findings of fact recorded by the learned trial court stand<\/p>\n
affirmed by the learned lower appellate court.\n<\/p>\n
             Learned counsel for the appellant vehemently contends that<\/p>\n
the findings recorded by the learned courts below cannot be sustained as<\/p>\n
suspicious circumstances pointed out could not be a ground to reject the<\/p>\n
Will which otherwise     was proved to have been executed by the deceased<\/p>\n
Jagtar Singh as proved by the attesting witnesses as well as the scribe of the<\/p>\n
Will.\n<\/p>\n
             However, this contention of the learned counsel for the<\/p>\n
appellant cannot be accepted. The learned courts below rightly observed<\/p>\n
that date on the Will is in different ink than that of the body, which was a<\/p>\n
strong suspicious circumstance. It may further be noticed that the Will was<\/p>\n
executed at very early age of the executant still the same was not got<\/p>\n
registered for the reasons best known to the parties.
\n RSA No.658 of 1989                                              7<\/span><\/p>\n
              Karam Singh, one of the attesting witnesses, was said to be<\/p>\n
interested party as he helped the plaintiff\/appellant in getting mutation<\/p>\n
sanctioned.\n<\/p>\n
               The learned courts below were,         thus, fully justified in<\/p>\n
disbelieving the statement of Karam Singh PW 3 in view of his<\/p>\n
participation in getting mutation sanctioned in favour of the natural heirs.<\/p>\n
              Learned lower courts were justified to come to a conclusion<\/p>\n
that in case the said Will attested by Karam Singh was in existence, there<\/p>\n
was no reason for him to participate in getting the mutation sanctioned in<\/p>\n
favour of all the natural heirs.\n<\/p>\n
              The learned courts below held that the Will was not written by<\/p>\n
the regular deed writer as PW 5 was not shown to be a regular deed writer.<\/p>\n
The court further observed that the Will was thumb marked whereas the<\/p>\n
plaintiff was in possession of the power of attorney executed           by the<\/p>\n
deceased which was intentionally not produced which was a registered<\/p>\n
document.\n<\/p>\n
              The learned courts below, therefore, rightly observed that it was<\/p>\n
for the plaintiff to have got thumb marks compared with the registered<\/p>\n
document i.e. the power of attorney which was in possession of the<\/p>\n
plaintiff\/appellant. The learned courts held that Karam Singh, Devinder Pal<\/p>\n
and Ajit Singh had       appeared before the revenue court       in   mutation<\/p>\n
proceedings where the stand was different to the one taken in the court. The<\/p>\n
learned courts below also observed that the format of Will also raised<\/p>\n
suspicion.\n<\/p>\n
              Both the courts below recorded a concurrent finding of fact
\n RSA No.658 of 1989                                               8<\/span><\/p>\n
that the Will procured       by the plaintiff\/appellant was not a genuine<\/p>\n
document, therefore it was held that the mutation sanctioned as per natural<\/p>\n
succession was a      valid document and the declaration claimed by the<\/p>\n
plaintiff thus was rightly rejected.\n<\/p>\n
             Learned counsel for the appellant pointed out that one of the<\/p>\n
natural heirs through      her legal representatives has entered       into a<\/p>\n
compromise with the appellant and therefore, has offered to surrender her<\/p>\n
share in favour of the plaintiff\/appellant.\n<\/p>\n
             Learned counsel for the appellant contends that the substantial<\/p>\n
question of law for consideration of this court in this appeal is:<\/p>\n
             “Whether the judgment and decree is outcome of misreading of<\/p>\n
             evidence on record, thus, perverse?<\/p><\/blockquote>\n
             However, it may be noticed that the findings have been<\/p>\n
recorded on appreciation of evidence which cannot be said to be perverse or<\/p>\n
the outcome of misreading of evidence.\n<\/p>\n
             This court in regular second appeal cannot reappraise the<\/p>\n
evidence and come to a different conclusion in the absence of proof of<\/p>\n
misreading of evidence by the learned courts below or the finding being<\/p>\n
perverse.\n<\/p>\n
             Thus, the substantial question of law as claimed by the<\/p>\n
plaintiff\/appellant deserves to be answered against him.<\/p>\n
             No merit.\n<\/p>\n
             Dismissed but with no order as to costs.\n<\/p>\n
16.01.2009                                          (Vinod K.Sharma)\nrp                                                       Judge\n RSA No.658 of 1989   9<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Bukan Singh (Dead Through L.Rs.) vs Pakhar Singh (Dead Through L.Rs.) … on 16 January, 2009 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.) & […]<\/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-59554","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nBukan Singh (Dead Through L.Rs.) vs Pakhar Singh (Dead Through L.Rs.) ... on 16 January, 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\/bukan-singh-dead-through-l-rs-vs-pakhar-singh-dead-through-l-rs-on-16-january-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bukan Singh (Dead Through L.Rs.) vs Pakhar Singh (Dead Through L.Rs.) ... on 16 January, 2009 - 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