Punjab-Haryana High Court
Mohinder Singh vs Joginder Singh And Others on 5 December, 2008
RSA No. 1350 of 1981 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
RSA No. 1350 of 1981
Date of Decision : .12.2008
Mohinder Singh .....Appellant
Vs.
Joginder Singh and others .....Respondents
Present : Mr. Gursimran Sidhu, Advocate for the appellant.
Mr. Karam Bhardwaj, Advocate for Mr. Anupam Gupta,
Advocate for the respondents.
...
RAJIVE BHALLA, J (Oral)
The appellant challenges the judgement and decree passed by the Additional District Judge, Sangrur dated 31.3.1981, accepting the appeal filed by respondents no.1 and 2, thereby reversing the judgement and decree dated 21.3.1980 passed by the Sub Judge, Ist Class, Malerkotla and as a result decreeing the suit filed by respondents no.1 and 2.
Smt.Bhan Kaur, now deceased, filed a suit praying for grant of a declaration that as her real brother Saon Singh, had passed away unmarried and issueless, she has become exclusive owner of suit land, measuring 33 Kanals and 7 Marlas, situated in Village Nathumajra.
Mohinder Singh, the defendant-appellant denied the averments in the plaint and pleaded that Saon Singh was married to Smt.Sardari and the appellant was born from this wedlock. During his life time, Saon Singh, executed a Will, dated 19.3.1966, bequeathing his entire property to RSA No. 1350 of 1981 2 Smt.Sardari and the appellant in equal shares. Smt. Sardari passed away on 15.4.1970 and upon her demise, the appellant has become sole and exclusive owner of the suit land. On the pleadings of the parties, the learned trial Court framed the following issues :-
"1. Whether Ban Kaur wife of Hira Singh was the sister of Saon Singh deceased ? OPP.
2. Whether the plaintiffs and defendants No.9 to 26 are legal representatives of Bahan Kaur deceased ? OPP.
3. Whether Saon Singh deceased executed a valid Will in favour of defendant no.1, if so, its effect ? OPD.
4. If issue no.3 is proved, whether the will executed by Saon Singh deceased in favour of defendant no.1 is forged and fictitious document ? OPD.
5. Whether the suit is not maintainable in the present form ? OPD.
6. Whether the plaintiff is entitled to the injunction prayed for ? OPP
7. Whether the suit property is not properly described ? OPD.
8. Whether Mohinder Singh is the son of Saon Singh deceased ? OPD.
9. Relief."
The learned trial Court, after considering the pleadings, the evidence adduced and the arguments addressed dismissed the suit by holding that Mohinder Singh had established his status as the real son of RSA No. 1350 of 1981 3 Saon Singh deceased and was, therefore, entitled to succeed to his estate. It was also held that the registered Will dated 19.3.1966 Ex.D-1 is legal and valid.
Aggrieved by the aforementioned judgement, respondents no.1 and 2 filed an appeal. The first appellate Court accepted the appeal, set aside the judgement and decree passed by the trial Court and decreed the suit by holding that from the evidence adduced by Mohinder Singh, it could not be held that he was the son of Saon Singh. It was also held that Mohinder Singh had failed to prove the execution of the Will, allegedly executed by Saon Singh.
Counsel for the appellant submits that the first appellate Court discarded material evidence, ignored relevant pleadings and, therefore, returned findings contrary to the evidence on record. The first appellate Court brushed aside the admission made by Joginder Singh that the appellant is the "pichlag son" of Saon Singh by holding that it did not amount to an admission that Mohinder Singh is the son of Saon Singh. It is submitted that a "pichlag son" is a son for all purposes and,therefore, the first appellate Court committed an error. It is further submitted that the death certificate of Smt.Sardari, wife of Saon Singh (Ex.D-3) and mother of the appellant was wrongly discarded on account of a spelling mistake in Saon Singh's father's name. A mere spelling mistake should have been ignored as the death certificate establishes that Saon Singh was married, thus negativing the respondents claim that Saon Singh died unmarried and issueless. It is further submitted that the Arbitration award Ex.D-5 and other documents were wrongly discarded by the first appellate Court. The ration card, duly proved was discarded as it refers to another son of Saon RSA No. 1350 of 1981 4 Singh. The voters list that refers to Mohinder Singh as step son of Saon Singh has not been adverted to by the first appellate Court.
Counsel for the respondents submits that the evidence adduced by the appellant is inherently unreliable, is riddled with factual inaccuracies and was, therefore, rightly rejected by the first appellate Court. It is submitted that the so called admission by Joginder Singh that the appellant is the "pichlag son" of Saon Singh, was rightly rejected, as orders passed by revenue authorities do not bind civil Courts. Even otherwise, no admission was recorded that Mohinder Singh is the "pichlag son" of Saon Singh. The ration card was rightly rejected as it refers to Mohinder Singh and Badri sons of Saon Singh, whereas the case set up by the appellant is that he is the only son of Saon Singh, deceased. The death certificate of Smt.Sardari was rightly rejected, as Saon Singh father's name is incorrect. It is further pointed out that the deposition of the witnesses produced by the appellant were rightly rejected by the first appellate Court, as Kundan Singh had agreed to purchase the suit land from Mohinder Singh by way of an agreement Ex.PW-3/A. Mohinder Singh had executed a pronote Ex.PW-3/C in favour of Inder Singh promising to pay a sum of Rs.1,000/-. The first appellate Court rightly drew an adverse inference from these documents that these witnesses were interested and had,therefore, deposed in favour of Mohinder Singh. It is, therefore, submitted that as no substantial question of law arises for consideration, the appeal be dismissed.
I have heard learned counsel for the parties, perused the impugned order, as also the relevant record.
Counsel for the appellant has framed the following questions of law :-
RSA No. 1350 of 1981 5
1. "Whether the admission that Mohinder Singh, is the "pichlag son" of Saon Singh would entitle Mohinder Singh to succeed to the estate of Saon Singh."
2. "Whether the first appellate Court misread and disregarded evidence on record?"
After the death of Saon Singh, a dispute arose as to the right to succeed to his estate. Bhan Kaur his sister (predecessor-in- interest of the respondents) alleges that Saon Singh died unmarried and issueless, whereas Mohinder Singh, the appellant alleges that while residing in Basti, Uttar Pradesh, Saon Singh married one Smt.Sardari and he was born from this wedlock and before his demise, Saon Singh, executed a registered Will dated 19.3.1966, bequeathing his entire property to the appellant and Smt.Sardari.
The dispute came up for consideration before the Assistant Collector, IInd Grade, for sanction of a mutation of inheritance. Joginder Singh respondent no.1, contested the right of Mohinder Singh to succeed to the estate of Saon Singh, by alleging that Mohinder Singh is the "pichlag son" of Saon Singh and is, therefore, not entitled to succeed to his estate. In view of these disputed questions, the Assistant Collector, IInd Grade, referred the parties to the Assistant Collector, Ist Grade, Malerkotla. Joginder Singh raised an objection before the Assistant Collector, IInd Grade that as Mohinder Singh is the step son of the deceased, he is not entitled to succeed to his property. The Assistant Collector, Ist Grade, Malerkotla vide order dated 30.11.1977, held that Mohinder Singh is the son of Saon Singh from his marriage to Smt.Sardari, A relevant extract RSA No. 1350 of 1981 6 from the order passed by the Assistant Collector, Ist Grade, Malerkotla, reads as follows :-
"..........when the mutation came up for hearing before the A.C. IInd Grade, Joginder Singh, nephew of the deceased raised an objection that Mohinder Singh is the step son of the deceased and hence he is not entitled to this property. The mutation was declared contested and sent to A.C. I.G. for disposal. ........"
The trial Court relied upon the admission, recorded by the Assistant Collector, IInd Grade to hold that as Joginder Singh admits that Mohinder Singh is the "pichlag son" of Saon Singh, his primary contention that Saon Singh had died unmarried and issueless is incorrect. The first appellate Court, however, brushed aside this admission by holding that the mutation Ex.D-6 refers to an admission that Mohinder Singh is the "pichlag son" of Saon Singh is irrelevant as a pichlag son cannot be equated with a real son.
The first question of law, arises from an admission allegedly made by Joginder Singh before the Assistant Collector, Ist Grade that Mohinder Singh is the "pichlag son" of Saon Singh-deceased. The question posed is the import of this admission and whether it would confer any right upon Mohinder Singh, to assert his status as the son of Saon Singh and as a result his right to inherit the estate of his step father. The words "pichlag son" mean a son from a previous marriage and when used in the context of a wife mean a son born to the wife from a previous marriage. The admission, if accepted, appears to suggest that Mohinder Singh is the son of RSA No. 1350 of 1981 7 Smt.Sardari wife of Saon Singh from a previous marriage. The admission, therefore, can at best be pressed into service to hold that Saon Singh was married to Smt.Sardari and Mohinder Singh is her son from a previous marriage. The admission cannot be pressed into service to hold that Mohinder Singh is the natural born son of Saon Singh from his marriage to Smt.Sardari. The list of heirs, entitled to succeed to the estate of a deceased male Hindu are enumerated in Section 8 of the Hindu Succession Act, 1956 and do not include the son of a wife from a previous marriage. As a result, even if it is to be held that Joginder Singh has admitted that Mohinder Singh is the "pichlag son" of the deceased, it would not confer any right upon Mohinder Singh to succeed to the estate of Saon Singh as his natural born son. The first question of law is, therefore, answered by holding that the admission made by Joginder Singh that Mohinder Singh is the "pichlag son"
of Saon Singh would not confer a right upon Mohinder Singh to succeed to the estate of Saon Singh or estop Joginder Singh or the respondents from asserting that Mohinder Singh is not the natural born son of Saon Singh and, therefore, not entitled to succeed to the estate of Saon Singh.
The second question framed by counsel for the appellant is that the finding recorded by the first appellate Court that Mohinder Singh has failed to establish his status as the son of Saon Singh, discloses misreading and disregard of material evidence. In order to establish his status as the son of Saon Singh, the appellant, apart from placing reliance upon an admission made by Joginder Singh, placed reliance upon the oral deposition of witnesses, entries in the ration card Ex.PX, the death certificate of Smt.Sardari Ex.D-3, the voter list Ex.P-2, an Arbitration Award Ex.D-5 and the order passed in mutation proceedings Ex.D-6. RSA No. 1350 of 1981 8
The death certificate Ex.D-3 refers to Smt.Sardari as the wife of Saon Singh son of Basakh Singh, resident of Village Nathu Majra. The first appellate Court discarded Ex.D-3 by holding that the death certificate refers to Saon Singh as son of Basakh Singh, whereas his father's name was Basawa. Even if one were to disregard this error as a mere spelling mistake,as other facts appearing in the certificate are correct, the certificate would not advance the appellant's case that he is the son of Saon Singh, as it would at best enable the Court to hold that Smt.Sardari was the wife of Saon Singh and Saon Singh did not pass away unmarried. The ration card Ex.PX puts paid to the appellant's claim. Though his name finds mention in the ration card, the name of one Badri, stated to be the brother of Mohinder Singh also finds mention. As per the appellant, he is the only son of Saon Singh. This apparent contradiction in a document produced and relied upon by the appellant remains unexplained. The ration card was, therefore, rightly rejected by the first appellate Court. The voter list Ex. D-2 records Mohinder Singh as son of Saon Singh but is by its very nature an unreliable piece of evidence. The other evidence,namely the Arbitrators award etc. are based upon statements provided by Mohinder Singh and were, therefore, rightly rejected. As noticed herein above, the first appellate Court considered the entire evidence and recorded its findings after a considered appraisal of the pleadings and the evidence. The oral evidence adduced by the appellant, in support of his plea that he is the son of Saon Singh was rejected as being interested and motivated. The findings recorded by the first appellate Court do not disclose any error much less an error in appreciating evidence or in the process of reasoning that led to the rejection of the appellant's claim. The second question of law is, thus, RSA No. 1350 of 1981 9 answered by holding that the first appellate Court did not commit any error, while reversing the judgement and decree passed by the trial Court.
Before parting with the judgement, it would be necessary to mention that arguments were not addressed by counsel for the appellant with respect to the Will Ex.D-1 and therefore, the findings returned by the first appellate Court with respect to the Will are affirmed.
In view of what has been stated herein above, the appeal is dismissed and the judgement and decree dated 31.3.1981, passed by Additional District Judge, Sangrur, is affirmed with no order as to costs.
.12.2008 (RAJIVE BHALLA) GS JUDGE