Punjab-Haryana High Court
Lila Dhar vs Smt. Badho And Anr. on 26 August, 1993
Equivalent citations: (1994)106PLR525
JUDGMENT S.K. Jain, J.
1. Ganga Ram died on 17.8.1985. His wife had pre-deceased him. During his life time, he executed a registered will dated 2.4.1989 Ex.D2 thereby bequeathing his property situated in the State of Rajasthan in favour of one of his daughters Smt. Badho wife of Kalu Ram whereas his property situated in village Jhummian-Wali, District Ferozepur, was bequeathed by him in favour of Lila Dhar son of his other daughter Smt. Gauran. On the basis of will Ex.D-2 mutation in respect of Jhummianwali village property was sanctioned on 30.1.1986 in favour of Lila Dhar after contest. Smt. Badho plaintiff, respondent No. 1 herein, instituted Civil Suit No. 128/19-2-1986 in the Court of Sub Judge Ist Class, Fazilka for a decree for declaration to the effect that she and Smt. Gauran defendant No. 1 were joint owners in possession qua Jhumian Wali property fully described in the head note of the plaint. By way of consequential relief, she sought an injunction restraining Lila Dhar respondent No. 2 from interfering in her possession. Permanent injunction was also sought restraining him from alienating the said land in any manner. That suit was contested by Smt. Gauran and Lila Dhar defendants. It was dismissed on 7.11.1988 by Shri Dharam Singh, Sub Judge Ist Class, Fazilka.
2. Feeling aggrieved the plaintiff preferred Civil Appeal No. RBT 177 of 1988 which was allowed by Additional District Judge, Ferozepur thereby decreeing the suit of the plaintiff vide his judgment and decree dated 6.2.1991. The will Ex.D2 was held to be suspicious by the first Appellate Court. It is that judgment and decree of the first Appellate Court which has been appealed against by Lila Dhar defendant and which required my examination of its sustainability.
3. I have seen the pleadings in the suit, the evidence adduced by the parties in the suit and the judgments of both the Courts below.
4. The sole argument advanced by the learned counsel for the appellant is that the learned first Appellate Court has misread and ignored the evidence on record and has, therefore, legally erred in setting aside the well reasoned judgment of the learned trial Court.
5. Learned trial Court in the first instance had found in its judgment that one of the attesting witnesses of the will namely Om Parkash Aneja, Advocate has duly proved the execution and registration of the will. The other witness Sukh Ram Dass PW3 has admitted his signatures on the will although he has stated that when he reached, the will had already been scribed and that he had signed it on the assurance of Lila Dhar that he had got the will executed in his favour. But the later part of the testimony of this witness was not sufficient to wash away the authenticity of the will. It was scribed by Kanshi Ram and the testator had signed it when it was read over and explained to him. The learned Subordinate Judge has concluded that will Ex.D2 had been duly attested by Sukh Ram Dass PW2 in the presence of Ganga Ram Testator and other attesting witness Shri Om Parkash Aneja, Advocate Dw3 and it was evident that Sukh Ram Dass Witness had been won over by the other party but even then the registered will was a genuine document. It is further held by him that even otherwise also the plaintiff Smt. Badho had been given property situated in village Rarru in Rajasthan and the land situated in Jhumain-Wali had been given to the defendant No. 2 being the son of defendant No. l. Both the daughters i.e. the plaintiff and defendant No.l were entitled to 1/2 share each had Ganga Ram died intestate and, therefore, the plaintiff was not in any way prejudiced, the distribution being equal. Dealing with the testimony of Shri Om Parkash Aneja, Advocate DW3 did not give the particulars of the health of Ganga Ram and further because two or three persons of the village of the testator were also present at the time of the execution of the will but none of them had attested the will, the will cannot be said to be invalid. Mr. Om Parkash Aneja knew Ganga Ram fully well as he had been consulting him on various legal matters. The learned Subordinate Judge has also found support to the genuineness of the will from the fact that Ganga Ram was residing in village Jhummianwali with Lila Dhar defendant No. 2 who was serving him during his life time and had also performed his last rites, He was looking after the property of Ganga Ram in that village. From the above inferences drawn from the evidence on record, the learned trial Court had recorded a firm finding that Ganga Ram had executed a valid will dated 2.4.1979 and that the plaintiff was not entitled to the relief of declaration and permanent injunction as prayed for.
6. Now on to the judgment of the first Appellate Court. Learned Additional District Judge, Ferozepur, has disbelieved the testimony of the attesting witness Shri Om Parkash Aneja, Advocate, on the grounds: -
(i) that he could not tell the father's name of the testator;
(ii) that he could not tell the dates on which Ganga Ram had consulted him 3/4 times and on what matters;
(iii)that he could not tell the events on which Ganga Ram had consulted him;
(iv) that Ganga Ram had not engaged him in any regular case;
(v) that he had given evasive replies with regard to the age and health of Ganga Ram;
(vi) that he admitted that prior to the execution and attestation of the will, he did not know Sukh Ram; and
(vii)that admittedly three or four persons known to Ganga Ram belonging to his village were present at the time of execution of the will, therefore, there was no necessity to get the will attested from a stranger like Om Parkash Aneja.
7. What emerges thus as the real controversy regarding adjudication is the validity of the will Ex.D-2. in particular, was it duly executed by Ganga Ram in accordance with law.
8. The Evidence on record shows that Smt. Badho Plaintiff and Smt. Gauran were daughters of Ganga Ram testator. It was Smt. Gauran's son, namely Lila Dhar defendant No. 2, who used to serve him. It has cone in evidence that Ganga Ram resided with said Lila Dhar at Village Jhummianwali. The last rites of Ganga Ram were also performed by Lila Dhar.
9. In seeking to oppose the will of Ganga Ram, Smt. Badho plaintiff came into the witness box and deposed that she and her sister Gauran were heirs of their father Ganga Ram who died in 1985. He did not executed any will and the will Ex.D2 was forged and fictitious document. After the death of Ganga Ram, both of them , were in possession in equal shares. However, in her cross-examination she admitted that the mutation had been sanctioned in favour of Lila Dhar although she alleged the same to be illegal. She admitted that Ganga Ram resided at village Jhummianwali. She denied the fact that Ganga Ram resided with Lila Dhar. She admitted that she had contested the mutation in favour of Lila Dhar on the basis of the will which was decided in his favour and that she had not filed any appeal against that order.
10. On the other hand, Lila Dhar appeared as DW1. He testified that on the basis of the will Ex.D-2, Mutation Ex.D-1 was sanctioned in his favour in respect of the land in village Jhummianwali. Dw-2 Joginder Pal, Officer, Quanungo, Fazilka, produced the mutation Ex. D1. Shri Om Parkash Aneja, Advocate Dw-3 and Sukh Ram Dass PW-2 the marginal witnesses of the will were also examined on behalf of the defendants and plaintiff respectively.
11. The main oposition that in view of the fact that one of the marginal witnesses namely Sukj Ram Dass, PW-2 having not supported the defendants, it cannot be held that the will had been executed as required by law. It is no doubt settled law that in order to up-hold the validity of a will, the Court must be satisfied that it not only bears the signatures or thumb impression of the testator, but also it is attested by two witnesses, who had either seen the testator signing or affixing his thumb mark on the will or had received from him personal acknowledgement of his signature or thumb mark and that each such witness must also sign or affix his thumb mark on the will in the presence of the testator.
12. Herein, Om Parkash Aneja, Advocate, Fazilka, and Sukh Ram Dass, DW-3 and PW2 respectively are the attesting witnesses of the will. DW-3 Om Parkash Aneja has proved the due execution of the will by Ganga Ram by saying that Kanshi Ram, deed writer, Fazilka at the instance of Ganga Ram testator who was in sould disposing mind, had scribed the will Ex. D-2. He read over and explained the contents of the will to him in his presence and that of Sukh Ram Dass. Ganga Ram had affixed his thumb impression on the will after admitting its contents to be correct in the presence of both of them. Thereafter, he and Sukh Ram Dass had signed the will in presence of Ganga Ram. He had also appeared before the Sub Registrar at the time of the registration of the will alongwith Ganga Ram and Sukh Ram Dass. Contents of the Will Ex.D2 were again read over and explained to the executant by the Sub-Registrar Ganga Ram had affixed his thumb impression after admitting them to be correct in the presence of these two witnesses. This witness Om Parkash Aneja, Advocate had also signed the endorsement Ex.D2/1 on the will Ex.D2.
13. Since the testator Ganga Ram had put his thumb impression in the presence of the Sub-Registrar who also signed the endorsement, so the Sub-Registrar shall also have to be taken to be an attesting witness in view of the provisions of Section 60 of the Registration Act, the contents of the endorsement are admissible in evidence and shall have to be taken as true. Further, the fact that the endorsement was executed in accordance with law and that all the persons had put their signatures thereunder, as borne out from the record, has to be legally presumed to be true. It has been so held by this Court in Niranjan Singh v. Parsa Singh Alias Parsu, 1971 Cur. L.J. (Pb) 195.
14. The certificate Ex.D2/1 issued by the Sub-Registrar is to some extent an evidence of the execution of the document and the admission of his signature before the Sub-Registrar by the executant call form an evidence of the execution of the document. There was no necessity to produce any evidence to prove the execution of the will. The certificate of the Registering Officer on the will was sufficient proof of the execution of the will and its contents as held by this Court in Gurbux Singh and Ors. v. Bishan Das Chela Kaul Dass, A.I.R. 1970 Pb. and Haryana 182.
15. It is true that Court is not bound to treat the Registrar's edocursement as conclusive proof of the fact of its execution, yet, if the executant admits the execution and signs it before the Sub Registrar and the Sub Registrar affixes his signature endorsing the signature of the executant stating that the executant has admitted execution and certifies the document, then such an endorsement and the certificate read with other evidence is sufficient to hold that the document is proved to have been signed and executed by the executant. This view was held in AmirBi and Ors. V. Committee of Management of Nilasandra Mosque Bangalore, A.I.R. 1969 Mysore 103.
16. It is no doubt true that mere registration is not in itself proof of the due execution of a document. The certificate endorsed by the registering officer on the document is admissible to prove that the executant was of sound mind. This view was held by a Division Bench of A.P. High Court in Voleti Venkata Rama Rao v. Kasapragada Bhaskara Rao, A.I.R. 1962 AP 29(DB).
17. Again, herein the will was duly registered. There is an endorsement on it by the Sub-Registrar that its execution was admitted by the executant. This is an act performed by Sub-Registrar in his official capacity and it should be presumed that he would not make such an endorsement unless the execution was admitted before him by the testator. In Mst. Jhunkari Bahu alias Katrawali w/o Laxmi Parsad and Ors. v. Phool Chand alias Manik Chand Chhote Lal Jain, A.I.R. 1958 MP 261 it was held that the execution of the will by the executant must be presumed. DW3 Om Parkash Aneja, Advocate knew Ganga Ram and Sukh Ram Dass personally. It stands established that the will Ex. D2 bears the thumb impression of Ganga Ram and signatures of Om Parkash Aneja, Advocate as also that of Sukh Ram Dass attesting witnesses thereof. Further, as mentioned earlier, this will was registered too. Even the plaintiff Badho has not stated that at the relevant time the testator Ganga Ram did not have sound disposing mind. What she has stated is that he was an innocent type (Bhola Adami Tha) and illiterate person. By no stretch of imagination it could be said that an innocent and illiterate person would be in-competent to execute a Valid Will. The Sub Registrar was an independent Officer. Had Ganga Ram been not of sound disposing mind even at the time of registration of the Will, he would not have attested the will.
18. Now on to the second attesting witness of the will, namely Sukh Ram Dass, He was examined by the plaintiff as PW2. When he came in the witness box while admitting his signature on the will as well as the endorsement of the Sub Registrar, he stated that the will had already been scribed when he reached there.
19. In order to establish the validity of a will, it has ,no doubt to be proved that it was attested by at least two witnesses, but it must, at the same time also be observed that it is not the intention of the law that an attesting witness be permitted to hold the propounder of a will to ransom, as it were, by treating his mere denial of attestation of the will, by itself, as negation of due execution of the Will. Where the attesting witness or some of them prove hostile or unreliable, the Court is not powerless to declare in favour of the will and if from the other evidence on record and the circumstances taken as a whole, it is in a position to hold the will was duly executed and attested, it will pronounce in favour of its validity. If any judgment is required on the point, a reference can be had to Gurdev Singh v. Smt. Shanti, 1988, S.L.J. 885.
20. Turning now to the testimony of Sukh Ram Dass it will be seen that in his examination-in-chief he has admitted his signatures on the will Ex.D-2. The explanation put-forth by him to account for his signatures on the will to the effect that he had signed the same on the asking of Lila Dhar, cannot stand for scrutiny, in as much as in the examination-in-chief he had stated that the will was scribed at the instance of Lila Dhar; that Ganga Ram was not present at that time; and that Ganga Ram had not affixed his thumb impression in his presence. But in the next breath he had stated that when he reached there the will had already been scribed. So, if the will was scribed in his absence how could it lie in his mouth to say that it was scribed at the instance of Lila Dhar in the absence of Ganga Ram. He is not a trust-worthy witness. As he has stated that he had not appeared before the Sub-Registrar for attesting the endorsement but strangely enough his signatures appear on the back of the will under the endorsement of the Sub-Registrar. He could not dare to deny that the will had been scribed by Kanshi Ram deed writer and that he had signed that will in the presence of the said deed writer. The lie got nailed when he stated that he signs documents without going through them and blindly believing others. Thus, no reliance on the testimony of this witness could be placed. Relevant in this context is also the evidence of DW-4 Jai Sukh Ram who testified that he knew Ganga Ram resident of Jhummianwali personally. Badho and Gurnam were his daughters. Lila Dhar was the son of Gauran. Lila Dhar used to serve Ganga Ram during his life time and also performed his last rights. This witness has further stated that Ganga Ram had executed the Will bequeathing his land at Village Jhummianwali in favour of Lila Dhar and that situated in Rajasthan State in favour of Badho Plaintiff. Ganga Ram had sound disposing mind till his death. This witness used to visit Ganga Ram and the testator had told him about the execution of the above will.
21. In view of the above evidence, no reliance can be placed on the testimony of Sukh Ram Dass to the effect that he had signed the will at the instance of Lila Dhar and that when he reached the spot the will had already been scribed. In circumstances, there is indeed a ring of truth in the statement of Om Parkash Aneja, Advocate that Kanshi Ram deed-writer had scribed the will at the instance of Ganga Ram and that he had read over and explained the same to him in his presence and that of Sukh Ram Dass; that Ganga Ram had thumb marked the will after admitting the contents thereof to be correct in their presence and then each one of them had signed the will in the presence of Ganga Ram testator. The learned lower Court had legally erred in disbelieving the testimony of this witness on flimsy grounds. There is no reason to disbelieve the testimony of such a respectable and trust-worthy witness. There is nothing on the record to show that Om Parkash Aneja, Advocate was in any way inimically deposed towards Smt. Badho or was friendly with Lila Dhar or his mother. He was an independent witness and was having no interest in either of the parties. Simply because he could not tell the father's name of the testator and as to whether he used to wear spectacles or not; and whether he was fatty or lean and thin, his testimony will not become doubtful. Even his admission that he could not say as to on what occasion and on what matter Ganga Ram had consulted him will not in any manner prove that he did not know Ganga Ram.
22. Learned Counsel for the respondent has vehemently argued that neither the identity of Ganga Ram was established nor the thumb impressions on the Will were compared with the standard thumb impression of Ganga Ram and, therefore, it could not be said that the will had been validly executed. This argument attractive at first sight, is, in my opinion, not tenable on the sound appreciation of the evidence on record. Om Parkash Aneja, Advocate, an attesting witness of the will has stated in unambiguous terms that Ganga Ram testator had affixed his thumb impression on the will in his presence. As mentioned hereinbefore, this witness was also present before the Sub Registrar at the time of the registration of the will. At that time also Ganga Ram had affixed his thump impression below the endorsement of the Sub-Registrar. Perusal of the endorsement would show that Ganga Ram, testator, was identified before the Sub Registrar by Om Parkash Aneja, Advocate and Sukh Ram Das who were very well known to the Sub Registrar and, therefore, this endorsement read with evidence of Om Parkash Aneja, DW4, proved that the Will Ex. D-2 had been thumb marked by Ganga Ram and none else. Rather, the boot is on the other leg. If the plaintiff suspected that the will had not been thumb marked by Ganga Ram, she could have got it compared with his standard thumb impression. But for obvious reasons, she could not dare to do so.
23. In view of the above discussion, the judgment and decree of the lower Appellate Court which is impugned in this Regular Second Appeal cannot be sustained and is hereby set-aside. The judgment and decree of the Sub Judge 1st Class, Fazilka, dated 7.11.1988 is restored and the suit dismissed. Consequently, this appeal is allowed. No order as to costs.