Punjab-Haryana High Court
Joginder Singh (Since Deceased) Now ... vs Rur Singh Son Of Kishan Singh (Since ... on 3 December, 2013
Author: K.Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No.2650 of 1984 (O&M)
Date of decision:03.12.2013
Joginder Singh (since deceased) now represented by his LRs (i)
Sukhdev Singh son of late Joginder Singh, resident of Village Heir,
Tehsil and District Amritsar, and others.
... Appellants
versus
Rur Singh son of Kishan Singh (since deceased), resident of Village
Heir, Tehsil and District Amritsar, and others.
... Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. Arun Jain, Senior Advocate,
with Mr. Arnav Sood, Advocate,
for the appellants.
Mr. M.L. Sarin, Senior Advocate,
with Ms. Hemani Sarin, Advocate,
for the respondents.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? No.
2. To be referred to the reporters or not ?No.
3. Whether the judgment should be reported in the digest ?No.
----
K.Kannan, J.
1. The plaintiff, who was successful in his suit for declaration of the suit property, lost in appeal filed by the defendants. The plaintiff is the appellant before this Court.
2. The dispute relates to the estate of Bur Singh. The plaintiff is his brother's grandson. The plaintiff's contention was that Bur Singh executed a registered Will in his favour on Kumar Sanjeev 2013.12.04 11:20 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2650 of 1984 (O&M) -2- 23.02.1972. It came into effect on his death on 05.10.1972. The plaintiff would contend that Bur Singh had treated the plaintiff as his son, since he has no issue through his wife Niranjan Kaur. Niranjan Kaur herself was a witness to the Will executed by Bur Singh in his favour. He had filed yet another suit which was against Niranjan Kaur for declaration, but she died during the pendency of the suit. He had impleaded his own father Piara Singh as her legal representative (as husband's heir) and a decree for declaration had been granted in his favour on 21.04.1975. The suit against the defendants came to be filed on a contention that the defendants were strangers and were setting up a Will alleged to have been executed in favour of defendant no 1. It was also claimed that there had been a mortgage by Bur Singh in relation to the property in favour of the sons of the 1st defendant, viz., defendants 2 to 4 and both the mortgage and the Will set up by the defendants were contended to be not true. The defendants were attempting to take possession of the property and if the Court would find that the defendants had actually taken possession, the plaintiff was seeking for an alternative relief of recovery of possession.
3. The defendants denied the plaintiff's claim to possession and contended that the plaintiff had actually filed a suit for injunction in Civil Case No.23 of 1973 but the interim injunction granted by the trial Court had been vacated by the appellate Court. Kumar Sanjeev 2013.12.04 11:20 I attest to the accuracy and integrity of this document chandigarh
Regular Second Appeal No.2650 of 1984 (O&M) -3- The suit itself was not prosecuted further and the suit was dismissed for non-prosecution. He filed yet another suit on the same cause of action in Civil Suit No.244 of 1975 and had sought for relief of injunction but that was also dismissed for default of prosecution. The defendants had sought for protection of their possession by an application under Section 145 Cr.P.C. and the plaintiff had been prevented by an order of the Executive Magistrate on 25.03.1976 from dispossessing the defendants. Joining issue on the Will said to have been executed in favour of the plaintiff, it was contended that Bur Singh executed a Will only in favour of 1st defendant on 23.08.1972 and on the basis of Will, mutation was also obtained in his name. The plaintiff's Will filed for mutation in his name was found to be a forgery by the Commissioner, Jalandhar Division. The plaintiff's own suit alleged to have been filed against Niranjan Kaur was a collusive transaction and the decree obtained against his own father after the death of Niranjan Kaur was also invalid. The defendants would further contend that the mortgage in favour of defendants 2 to 4 executed by Bur Singh on 25.07.1972 was validly executed. The property had been in possession of the mortgagees and Bur Singh himself has ceased to cultivate the land for a long time. The plaintiff was not in possession at all and the relief of declaration and injunction was untenable.
4. The trial Court had framed issues on the truth and Kumar Sanjeev 2013.12.04 11:20 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2650 of 1984 (O&M) -4- genuineness of the two rival Wills propounded by the plaintiff and the 1st defendant respectively. It had also framed an issue whether the mortgage alleged to have been executed by Bur Singh in favour of defendants 2 to 4 was true. The trial Court upheld the Will executed by Bur Singh in favour of plaintiff, found the mortgage to be true and finding that the period of redemption of the mortgage was for a term of 15 years, granted a decree in favour of the plaintiff for declaration and that the plaintiff could not seek possession without redeeming the mortgage. The Will propounded by the defendant was found to be not genuine. In the appeal filed by the defendants, the Court reversed the decision as regards the Will dated 23.08.1972 and upheld the same as established. It noted an argument of the counsel appearing on behalf of the plaintiff that he was confining his arguments only with reference to the Will and, therefore, found that the plaintiff's suit for declaration cannot survive in view of the validity of the subsequent Will which the Court found to be the last Will and testament. It is this judgment of the appellate Court which is in appeal.
5. The learned senior counsel appearing on behalf of the plaintiff would contend that since the Will propounded by the plaintiff dated 23.02.1972 was found to be true by the trial Court which finding was not set aside in the appellate Court and that the only consideration had to be whether the Will propounded by the Kumar Sanjeev 2013.12.04 11:20 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2650 of 1984 (O&M) -5- defendants was true or not. If the Will in favour of the 1st defendant was to be held as not true, the earlier Will would revive and the plaintiff would have a decree for declaration. The learned senior counsel would also argue that the mortgage had telltale recitals and the finding that the plaintiff had not challenged the genuineness of the mortgage was not correct. There was no concession given at the appellate Court regarding the validity of the mortgage and the argument had been only taken as confined to the Will and the appellate Court has not observed anywhere that the plaintiff was relinquishing the challenge to the mortgage. The learned senior counsel would point out to me the following circumstances as showing that the Will propounded by the defendant was not true:-
(i) The Will does not make any reference to the earlier registered Will in favour of the plaintiff. It is most artificial that the executant would not make a reference to an earlier Will voluntarily executed by him.
It has been on the other hand mentioned wrongly that there was a will in favour of the his wife, when there existed none.
ii) The Will made a sham bequest of a small extent of about 1 acre to be enjoyed for her life time and the deceased would never have been a party to such a document;
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Regular Second Appeal No.2650 of 1984 (O&M) -6-
iii) There was no reference anywhere in the Will that he consulted with his wife Niranjan Kaur and decided to make a bequest in favour of 1st defendant;
iv) The 1st defendant was an utter stranger to whom there was simply no reason for the deceased to make a bequest;
v) There had been a fraudulent mortgage with telltale recitals of consideration of ` 50,000/- at the time when the deceased was very ill and no justification for execution of such a mortgage could be found from the document itself. The mortgage was purported to have been in favour of defendants 2 to 4, who were the sons of the 1st defendant. They had an axe to grind to secure a bequest in the name of the 1st defendant for securing discharge of their own mortgage;
vi) The deceased was in the hospital at that time and the witnesses were said to have been brought to the hospital for executing the document. The doctor had not been examined and the person, who had brought about the document Gurdip Singh was not even the resident of the same village. He had taken an active participation in bringing about the earlier mortgage and he was a witness to the said document also;
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Regular Second Appeal No.2650 of 1984 (O&M) -7-
vii) The other witness Sohan Singh's evidence was hardly convincing in that he had admitted that he chanced to come to the hospital and the evidence elicited from him was that he signed the document and sat away and he did not know anything more.
viii) The Registrar, who had been brought to the hospital for registering the document, had not given any evidence as to how he was brought to the hospital and whether the procedure prescribed under Section 31 of the Registration Act had been followed.
6. To all these arguments, the learned senior counsel would bring support to his argument through the decision of the Supreme Court in Bharpur Singh and others Versus Shamsher Singh-2009 (1) RCR (Civil) 826 which held, while setting out the parameters for consideration of suspicious circumstances and considering the fact that the beneficiary was a mortgagee of the lands belonging to the testator, that the question that had to be posed was whether the testator could have had an independent advice in the matter. The Court found on an overall consideration of several factors like shaky signature, unnatural disposition and the propounder taking a prominent part to hold that the Will was not true. The counsel would argue that same reasoning ought to be adopted also to find that the Will propounded in favour of the 1st defendant was not true. Kumar Sanjeev 2013.12.04 11:20 I attest to the accuracy and integrity of this document chandigarh
Regular Second Appeal No.2650 of 1984 (O&M) -8- According to the plaintiff, the deceased was literally held a captive by the 1st defendant before his death and had taken documents from him to suit his own convenience.
7. The learned senior counsel appearing on behalf of the respondents would argue that the appellate Court has dealt with at length the factual consideration that impelled the testator to execute a Will in favour of 1st defendant. The counsel would reconstruct his own genealogy to make it appear that the 1st defendant was not a stranger to Bur Singh but he was Bur Singh's father Hari Singh's brother Natha Singh's grandson. His further contention was that during the lifetime when there were proceedings under Section 145 Cr.P.C., Niranjan Kaur herself had admitted to the Will executed by her husband in favour of 1st defendant. Yet another close heir, namely, the plaintiff's father Piara Singh himself did not lay any claim to the property as a heir even after the death of Niranjan Kaur. Piara Singh himself died only on 08.10.1980 and he had a strong animosity to his son and he had given a statement that he will not give his own property to his son but would prefer his grandson through yet another son Khazan Singh. The grandson had been examined as DW10, who spoke about the plaintiff's own relation with his father. The learned senior counsel would also refer to the fact that it was the 1st defendant, who performed the funeral obsequies and referred to the photographs that had been taken on his Kumar Sanjeev 2013.12.04 11:20 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2650 of 1984 (O&M) -9- death and at the time of cremation. The learned counsel would also urge that the Will propounded by the plaintiff itself was most unnatural in that the deceased had not even made a reference to his wife and why he was totally disinheriting her. The defendants' Will, on the other hand, made a provision for a maintenance by setting apart 1 acre of land. The counsel would argue that he is entitled to challenge the correctness of the finding regarding the Will propounded by the plaintiff even without preferring a cross appeal since he was interested in supporting the judgment of the lower appellate Court which had resulted in dismissal of the plaintiff's suit.
8. I will accept the argument that the finding regarding the Will propounded by the plaintiff by the trial Court and which was not upset by the appellate Court by any consideration could be appraised by this Court, notwithstanding the fact that there is no appeal by the defendants. The proposition is too well laid that if the plaintiff's suit itself was dismissed, the defendant cannot be said to be aggrieved to file a cross appeal and he can show that the finding recorded by the trial Court is erroneous.
9. In this case, the evidence has brought out the fact that the deceased had been under the care of the 1st defendant before his death. There is also evidence that the deceased had been admitted in the hospital with dysentery and he has old and infirm having crossed more than 90 years of age. The relationship between the plaintiff Kumar Sanjeev 2013.12.04 11:20 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2650 of 1984 (O&M) - 10 - and his father Piara Singh itself ought not to be a matter of any relevance, for, it was perfectly possible that the testator had a close relationship with his brother's grandson though not with his father. However, I cannot accept a situation that a person, who was executing a Will in favour of the plaintiff, would make no reference at all to his wife. A Will is invariably a document taking it away from the normal line of succession and a mere disinheritance of the wife ought not to be taken as a suspicious circumstance, but in this case the fact that there was not even making a reference to his wife was grossly suspicious. The learned senior counsel would argue that his wife was herself a witness and, therefore, there was nothing artificial about the Will propounded by the plaintiff. It did not appear that his wife was in any way favourably disposed of towards the plaintiff. The plaintiff had actually filed a suit against the widow through her lifetime and the suit was concluded only after her death when the plaintiff's own father was added as a legal representative. Niranjan Kaur herself had reportedly stated before the Executive Magistrate in the proceeding initiated by the 1st defendant that her husband had executed a Will only in favour of the 1st defendant. It is even unlikely that the widow did not know about the circumstances under which her thumb impression was taken. There could be no presumption that a person signing as a witness also knew the recitals. PW4-Kirpal Singh, Lambardar and PW3- Kumar Sanjeev 2013.12.04 11:20 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2650 of 1984 (O&M) - 11 - Harbhajan Singh were residents of the same Village. The trial Court had relied on their evidence as sufficient to uphold the Will. They had also given evidence of the fact that the widow was present in that place and he signed willingly as an attestor. The scribe Nandu Ram had died at the time of trial. The evidence of two witnesses was found by the trial Court to be sufficient to uphold the Will. The trial Court failed to note that the widow did not support the plaintiff during her lifetime in the alleged fact of execution of the Will by her husband. The plaintiff had to file a suit against her to stake his title to the property. Niranjan Kaur was actually supporting the Will said to have been executed in favour of the 1st defendant. Combined with the fact that there was no provision made for the wife and the fact that the plaintiff was at loggerheads with the widow, I would reverse the finding of the trial Court which was not interfered by the appellate Court that the Will had been established. On the other hand, I would find the trial Court failed to note all the relevant facts that are necessary to be considered in a solemn document like a Will and a sweeping statement that two witnesses had been examined to support the Will ought not to be taken as sufficient to accept the Will.
10. That would take us to a consideration of whether the mortgage alleged to have been executed in favour of defendants 2 to 4 and the Will executed still later in favour of 1st defendant were Kumar Sanjeev 2013.12.04 11:20 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2650 of 1984 (O&M) - 12 - established. The trial Court had found the mortgage as proved and did not grant a decree for recovery of possession. The appellate Court recorded the submissions made by the counsel. The validity of the mortgage taken as an issue No.8 before the trial Court was not expressly dealt with by the appellate Court by referring to the fact that it was already decided against the plaintiff and hence, need not be discussed. It was surely not a correct approach. Elsewhere in the same judgment of the appellate Court at para 18, the court had observed that the trial Court had already found that a valid mortgage had been executed. The court had, however, stated in its judgment, "the counsel for the plaintiff-respondent before the trial Court had gracefully admitted the execution of the mortgage Ex.D2 and the finding of the learned trial Court on issue No.8 had not been challenged by the learned counsel for the respondent." The learned senior counsel would underplay the concession given by the counsel by stating that the consideration of ` 50,000/- for mortgage was surely suspicious and no reasons at all had been given as to why an old man in his 90 years of age was borrowing such a huge sum for his expenses. No details of expenses had been given. The recitals surely appear suspicious and telltale, but I am not going to make any modification as regards the validity, for, the trial Court had upheld its validity on the basis of evidence of one of the attestors Gurpreet Singh and in the appellate Court, there had been surely a concession Kumar Sanjeev 2013.12.04 11:20 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2650 of 1984 (O&M) - 13 - made by the counsel that he admitted the execution of the mortgage. A lack of proper proof of the entire consideration cannot amount to invalidate the mortgage itself. I am not prepared to therefore reopen an issue regarding the validity of the mortgage.
11. As regards the validity of the Will propounded by the 1st defendant, the appellate Court found reason to accept its validity by the fact that Gurdip Singh the witness was not in any way related to the deceased or the 1st defendant and his own active participation by going to Amritsar and securing the presence of the Registering Officer ought not to be a suspicious circumstance. Another witness Sohan Singh was actually a neighbour of the testator at his native village and his evidence cannot be disputed regarding the facts relating to attestation. I see certain merit in the contention of the learned senior counsel appearing on behalf of the appellant that Sohan Singh was a chance witness, who had arrived at the hospital only to make a courtesy call, but he waited on to be a witness to the Will, whose evidence was very skeletal in that he merely stated that he signed the document and sat away from the place. The scribe, who had taken the thumb impression of the testator in his register, had not taken the signature of Sohan Singh which was rather unusual. The learned senior counsel appearing on behalf of the respondents read to me the entire judgment of the appellate Court where the appellate Court was trying to see whether there was Kumar Sanjeev 2013.12.04 11:20 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2650 of 1984 (O&M) - 14 - anything lacking in the evidence of the witnesses to the Will that could excite the suspicion of the Court. He would argue if the witnesses have spoken about the mental condition of the deceased and if there was also evidence that the deceased was actually having only dysentery and there was no proof that his mental faculties was in any way impaired, the appellate Court's judgment ought not to be set aside.
12. I have carefully gone through the entire text of evidence and the consideration given by the appellate Court. The appellate Court was literally reversing the judgment of the trial Court which had set out all the suspicious circumstances which were reiterated by the learned senior counsel appearing on behalf of the appellant, which I have extracted above. If there are suspicious circumstances regarding the manner of disposition, the suspicion arises only by the fact that the defendant was not a near relative but a distant agnate of the deceased. The fact seems to be that during the last days before the death of Bur Singh, the 1st defendant had a complete sway over him. I am unable to assess now whether the kind of sway that the 1st defendant had, was such as to completely take away the voluntary disposition of the 1st defendant. The photographs taken by the 1st defendant alongside the dead body, the photographs produced from the cremation ground with wooden logs over the dead body seem little to be exhibitionist for a normal conduct. The defendant at least Kumar Sanjeev 2013.12.04 11:20 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2650 of 1984 (O&M) - 15 - seems to have been over-zealous to make it appear as though he was the caretaker for the deceased and, therefore, the deceased had made a bequest. The appellate Court is a court of fact and must have seen whether the obsessive acts of the 1st defendant were such as to discredit his versions regarding the Will. The one point that stands out is that the widow herself supported only the Will executed in favour of the 1st defendant that could also be only expected in the given circumstances when she had no issue; her husband, who was a lifetime companion, had died at 90 years; she was in the evening years of her life when she was being taking care of only by the 1st defendant. She had a reason to be supported to the 1st defendant's cause. If she, therefore, supported that Will, no matter there was no reference to any consultation with Niranjan Kaur at the time of execution of the Will or no matter that none of the witnesses spoke about the presence of Niranjan Kaur at the time of execution of the Will, I find that if there are two views possible on appreciation of facts, I would go with the finding of fact rendered by the appellate Curt. All this is to state that there are fallabilities in the evidence and the unnatural factors attendant on the Will, but I do not find it to be overwhelming enough to upset the finding regarding its genuineness. Such a course of reasoning of the appellate court was also possible. The testator in his old age had not many years before him and he had no issue to support him. His own wife was old and Kumar Sanjeev 2013.12.04 11:20 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2650 of 1984 (O&M) - 16 - indeed, she had died within two years after the death of the testator. If he was therefore making a bequest to a distant relative who knew the advantage of taking care of an old man with properties, he was just clever and took the bounty and perhaps deservedly so. There is certain poetic justice in the manner in which the circumstances turned out: the plaintiff took a will from the old man in a manipulative way, filed a case against the widow to disinherit her totally. The first defendant took care of the 1st defendant at the hospital, made the widow happy during her dying days and walked away with the cake.
13. The judgment of the lower appellate Court is, therefore, confirmed and the appeal is dismissed.
(K.KANNAN) JUDGE 03.12.2013 sanjeev Kumar Sanjeev 2013.12.04 11:20 I attest to the accuracy and integrity of this document chandigarh