Punjab-Haryana High Court
Kewal Singh vs Shri Guru Teg Bahadur Khalsa College on 26 May, 2016
CM-650-C of 1988 in/&
RSA No. 540 of 1988 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CM No. 650-C of 1988 in/&
RSA No. 540 of 1988 (O&M)
Date of Decision : 26.05.2016
****
Kewal Singh and others
Vs.
Shri Guru Teg Bahadur Khalsa College for Women, Dasuya and others
****
Present: Mr. H.S. Bhullar, Advocate
for the appellants.
Mr. Iqbal Singh Bajwa, Advocate
for respondent no. 1.
Surinder Gupta, J.
Case of plaintiffs, in brief, is that the land measuring 112 kanals 6 marlas was joint ownership of Udham Singh, Partap Singh and Banta Singh in equal shares. During their life time they sold 1 kanal 15 marlas of land comprised in khasra no. 976 to Resham Singh and others.
2. After death of Udham Singh, his 1/3rd share in land measuring 110 kanals 11 marlas devolved upon Amrik Singh and Tirath Singh (plaintiffs no. 3 and 4) sons of Kewal Singh son of Banta Singh vide mutation no. 2191.
3. Banta Singh died leaving behind Kewal Singh and Hansa Singh (plaintiffs no. 1 and 2), who succeeded his share in the land in question.
4. Hansa Singh sold his share in the said land in favour of Tirath Singh and Amrik Singh and mutation no. 2115 was sanctioned to this effect.
5. Partap Singh died leaving behind his wife Bishan Kaur. During his life time he had executed a Will dated 30.12.1979 bequeathing 2/3rd of his share in the land measuring 110 kanals 11 marlas in favour of Amrik 1 of 9 ::: Downloaded on - 01-06-2016 00:03:05 ::: CM-650-C of 1988 in/& RSA No. 540 of 1988 -2- Singh and Tirath Singh and 1/3rd share in favour of Bishan Kaur.
6. In this manner, Amrik Singh and Tirath Singh have become owners of the land to the extent of 79 kanals 17 marlas out of 110 kanals 11 marlas and Bishan Kaur had become owner in joint possession of 12 kanals 16 marlas of land and Kewal Singh in joint possession as owner to the extent of land measuring 18 kanals 8 marlas.
7. Bishan Kaur died issueless and intestate and her share in the above land reverted to Kewal Singh and Hansa Singh being heirs of her husband. Defendant no. 1-Guru Teg Bahadur Khalsa College for Women, Dasuya has got no right, title and interest in the suit land. It has propounded a false and fabricated Will alleged to have been executed by Bishan Kaur in its favour and got sanctioned a mutation of the share of Bishan Kaur in the suit land in its favour which is illegal, null and void. Plaintiffs have alleged that Bishan Kaur and Partap Singh never executed any Will in favour of defendant no. 1. The threat given by defendant no. 1 to take possession of suit land from plaintiffs led to filing of present suit.
8. Defendant no. 1 contested claim of plaintiffs inter alia pleading that share of Udham Singh did not devolve on Amrik Singh and Tirath Singh and Partap Singh never executed any Will in favour of plaintiffs. The Will propounded by plaintiffs is forged and fabricated. After death of Partap Singh, Bishan Kaur inherited entire share of Partap Singh in suit land and she executed a valid Will dated 30.07.1980 in favour of defendant no. 1, a day prior to her murder. In fact execution of the Will became the cause of her murder by plaintiffs. The mutation of inheritance of share of Bishan Kaur in suit land was sanctioned in favour of defendant no. 1.
9. Defendants no. 2 and 3 filed separate written statement 2 of 9 ::: Downloaded on - 01-06-2016 00:03:06 ::: CM-650-C of 1988 in/& RSA No. 540 of 1988 -3- admitting claim of plaintiffs.
10. Pleadings of parties led to framing of the issues as follows:-
(i) Whether the suit is not properly framed? OPD
(ii) Whether the plaintiffs are estopped by their act and conduct to file the present suit? OPD
(iii) Whether the suit is barred under Section 25 of the Hindu Succession Act? OPD
(iv) Whether the land 1 kanal 15 marlas out of khasra no.
976 was sold by all the co-sharers in favour of Resham Singh and others as alleged in para No. 2 of the plaint? If so, its effect? OPP
(v) Whether the plaintiffs succeeded to Udham Singh as mentioned in para no. 3 of the plaint?
(vi) Whether the plaintiffs are in joint possession of the land as co-sharers as detailed in the headnote of the plaint? OPP
(vii) Whether the plaintiffs have any cause of action? OPP
(viii) Whether Bishan Kaur executed any Will in favour of defendant no. 1? If so, its effect? OPD
(ix) If issue no. 8 is proved in affirmative whether the said Will is false, fabricated and forged document? OPD
(x) Whether the plaintiffs are entitled to the injunction prayed for? OPP
(xi) Relief.
11. Following additional issues were framed on 17.01.1984:-
9(a) Whether Partap Singh executed a valid Will dated 3 of 9 ::: Downloaded on - 01-06-2016 00:03:06 ::: CM-650-C of 1988 in/& RSA No. 540 of 1988 -4- 30.12.1979 in favour of Amrik Singh and Tirath Singh to the extent of 2/3rd share and in favour of his widow to the extent of 1/3rd share? If so, to what effect? OPP.
9(b) Whether plaintiffs Kewal Singh and Hansa Singh are entitled to succeed to the property left by Bishan Kaur by reversion if additional issue 9(a) is decided in affirmative? OPP
12. The dispute in this case revolves around inheritance of share of land owned by Udham Singh, Partap Singh and Bishan Kaur. Learned Sub Judge, Ist Class, Dasuya upheld the plea of plaintiffs that Amrik Singh and Tirath Singh inherited share of Udham Singh in suit land. Will dated 30.12.1979, executed by Partap Singh was held to be a valid and genuine document and Will dated 30.07.1980 of Bishan Kaur propounded by defendant no. 1 was discarded as false and fabricated document. On issue no. 5 regarding the inheritance of share of Udham Singh by Tirath Singh and Amrik Singh sons of Kewal Singh, it was observed that there is no challenge to that Will and a mutation regarding the inheritance of Udham Singh has been sanctioned in favour of Tirath Singh and Amrik Singh, as such, they have inherited his share. With these observations, suit of plaintiffs was decreed and they were declared owners/co-sharers in joint possession of land measuring 110 kanals 11 marlas out of total land measuring 112 kanals 6 marlas. Defendant no. 1 was restrained from interfering in joint possession of plaintiffs over suit land.
13. On appeal, Ist Appellate Court modified the judgment and decree passed by learned Sub Judge, Ist Class, Dasuya to the extent that Will of Partap Singh dated 30.12.1979 was upheld as legally and validly 4 of 9 ::: Downloaded on - 01-06-2016 00:03:06 ::: CM-650-C of 1988 in/& RSA No. 540 of 1988 -5- executed by him. Will dated 30.07.1980 was held to be validly executed by Bishan Kaur in favour of defendant no. 1 and it was declared to be owner of 2/9th share in suit land. Suit of plaintiffs seeking relief of permanent injunction was dismissed. Regarding the inheritance of share of Udham Singh by Tirath Singh and Amrik Singh, learned Ist Appellate Court observed in paras 13 and 14 as follows:-
"13. Best evidence in the form of the Will, allegedly executed by Udham Singh in favour of Tirath Singh and Amrik Singh having been withheld adverse presumption has to be drawn against the plaintiffs/respondents Tirath Singh and Amrik Singh that they had not succeeded through any such Will. Neither the existence of that Will nor its execution stands proved nor even in the note no. 5 to the remarks column of jamabandi 1976-77 Ex. P-2 is there any mention that Tirath Singh and Amrik Singh had succeeded to the estate of Udham Singh because of any Will.
14. Thus, Tirath Singh and Amrik Singh have not been proved to have become co-sharers on the death of Udham Singh in the joint khata with Partap Singh deceased and plaintiffs/respondents Kewal Singh, qua the share of Udham Singh deceased. Findings of the learned trial Court on issue no. 5 cannot be upheld."
14. Not satisfied, plaintiffs Kewal Singh, Amrik Singh and Tirath Singh filed present appeal challenging the judgment passed by Ist Appellate Court upholding the Will of Bishan Kaur as a legal and valid document and 5 of 9 ::: Downloaded on - 01-06-2016 00:03:06 ::: CM-650-C of 1988 in/& RSA No. 540 of 1988 -6- setting aside inheritance of share of Udham Singh in suit land by Amrik Singh and Tirath Singh.
15. Defendant no. 1 also filed cross-objections challenging the findings of Court below on issue no. 9(a) holding Will dated 30.12.1979 as legally and validly executed by Partap Singh. It was alleged that Will dated 30.12.1979 (Ex. P-1) was a forged and fabricated document.
16. Appellants have moved application under Order XLI Rule 27 CPC to prove the Will executed by Udham Singh on 03.07.1974 by way of additional evidence and also the death certificate of Udham Singh. Appellants have alleged that the Will of Udham Singh was not seriously challenged, as such, appellants remained under bona fide impression that production of mutation No. 2191 mentioned in jamabandi (Ex. P-2) was enough.
17. I have heard learned counsel for the parties and perused the lower Court record with their assistance.
18. Will dated 03.07.1974, alleged to have been executed by Udham Singh, is a registered Will. Though, in the plaint, it was alleged that share of Udham Singh devolved on Tirath Singh and Amrik Singh as per mutation No. 2191, they did not plead the Will of Udham Singh. Even copy of mutation order No. 2191 was not produced. This had led learned Ist Appellate Court to reject the plea raised by plaintiffs that Tirath Singh and Amrik Singh have become owners of the share of Udham Singh in the suit land.
19. I believe the contention raised by learned counsel for appellants that plaintiffs did not produce the Will of Udham Singh under the impression that there is no dispute in this regard. The Will left by Udham 6 of 9 ::: Downloaded on - 01-06-2016 00:03:06 ::: CM-650-C of 1988 in/& RSA No. 540 of 1988 -7- Singh is a registered document. The fact that Will was not produced and proved by plaintiffs in these circumstances may cause severe dent to their claim. In order to meet the ends of justice and to decide the matter in a just and proper manner, I am of the considered view that plaintiffs be allowed to prove the registered Will left by Udham Singh and also his death certificate. This will not cause any prejudice to defendants-respondents as they will have opportunity to lead evidence in rebuttal.
20. During the perusal of lower Court file, I find that then Sub Judge, Ist Class, during trial of the case passed order dated 20.02.1984, which reads as follows:-
"Five PWs examined. Scribe of the Will is desired to be produced and he has sent medical certificate which is by a private doctor which cannot be relied upon. Moreover, two attesting witnesses of the Will have already been examined and Will has been duly proved and executed in accordance with the law. Therefore, there is no necessity to examine the scribe. Therefore, learned counsel for the plaintiff is directed to tender the documents if he so desired. He tendered some documents. Evidence of the plaintiff is closed in affirmative."
21. Due to non-examination of scribe of the Will executed by Partap Singh, benefit has been given to plaintiffs on the basis of this order with the observation in para 24 that learned trial Judge did not deem it fit that there was any necessity to examine the scribe. It is a point for argument as to whether at the stage of recording of evidence, such finding as recorded in order dated 20.02.1984 could be recorded and then benefit of this could be given to a party for non-examination of a witness? Every witness is 7 of 9 ::: Downloaded on - 01-06-2016 00:03:06 ::: CM-650-C of 1988 in/& RSA No. 540 of 1988 -8- relevant and has his own role. It is always prerogative of party to suit to examine or not to examine any witness. Plaintiffs have summoned the scribe, who could not appear on 20.02.1984. To avoid any adverse inference that may be drawn at any stage for and against plaintiffs-appellants, they are allowed opportunity to examine the scribe or whatever evidence they want to prove that the Will was scribed by Mohinder Lal Puri deed-writer.
22. During course of arguments before the Courts below and also in this appeal, point has been raised that signatures of Partap Singh on his Will are forged and fabricated and do not talley with the signatures on the sale deed produced on record. One of the reasons for rejecting this plea of defendant no. 1 is that they have not examined any document expert on this score.
23. As the case is being sent to the Ist Appellate Court to record additional evidence on the application of appellants, the application, if any, moved by any of the parties for examination of expert shall be duly considered and decided in accordance with law.
24. With the above observations, the file of this case is ordered to be sent to District and Sessions Judge, Hoshiarpur to entrust the same to the Court of Additional District Judge for recording of additional evidence in terms of order above and to send the report on issues no. 5 and 9(a). Parties are directed to appear before the District and Sessions Judge, Hoshiarpur on 06.06.2016. On appearance before the Court to which the case is entrusted, one opportunity will be given to produce list of witnesses and affidavits of witnesses to be examined (except of document expert, if required, which can be taken at later stage). Thereafter, three more opportunities will be allowed to examine all the witnesses to plaintiffs. On conclusion of 8 of 9 ::: Downloaded on - 01-06-2016 00:03:06 ::: CM-650-C of 1988 in/& RSA No. 540 of 1988 -9- evidence of plaintiffs, similar procedure will be adopted for defendants- respondents and the entire process will be completed by 30.11.2016. Original Will dated 03.07.1974, which was attached with CM-650-C of 1988, be also sent with lower Court record in a sealed cover with a note on file.
CM No. 650-C of 1988 stands disposed of.
The appeal be now listed on 20.12.2016, for arguments.
May 26, 2016 ( SURINDER GUPTA)
jk JUDGE
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