Punjab-Haryana High Court
Randhir Singh Deceased Th His Lr Jagjit ... vs Jasdev Singh And Ors on 28 March, 2019
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
RSA No.3645 of 2016 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.3645 of 2016 (O&M)
Date of Order:28.03.2019
Randhir Singh(now deceased) through LRs
..Appellant
Versus
Jasdev Singh and others
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. S.D.Sharma, Sr. Advocate with
Mr. Ved Priya Malik, Advocate and
Mr. K.R.Sharma, Advocate
for the appellant.
Mr. Deepak Bhardwaj, Advocate
for respondent no.1.
ANIL KSHETARPAL, J(Oral)
Plaintiff-appellant is in the regular second appeal against the concurrent findings of fact arrived at by both the courts below dismissing the suit filed for declaration that he is owner of the property left behind by Tej Kaur wife of Randhir Singh.
Plaintiff claims succession on the ground that Tej Kaur died intestate and hence property left behind was succeeded to by her husband Randhir Singh, who has executed a Will in their favour.
Tej Kaur and Randhir Singh were issueless. Hence, the entire 1 of 6 ::: Downloaded on - 12-05-2019 08:58:57 ::: RSA No.3645 of 2016 (O&M) -2- dispute is with regard to the estate left by Tej Kaur, who died on 13.05.2001.
Defendants contested the suit and pleaded that Randhir Singh had left her and had contracted second marriage with whom he was residing and, therefore, late Smt. Tej Kaur started residing separately from her husband in the village. She executed a registered Will in favour of grand children of her sister Surjit Kaur.
The Will has been proved through examination of both the witnesses, namely, Randhir Singh and Manjinder Singh, Nambardar. Scribe Sh. Sandeep Walia, Advocate, has also been examined.
On the basis of the evidence, both the courts have dismissed the suit.
This court has heard learned counsels for the parties at length and with their able assistance gone through the judgments passed by the courts below and the record.
Learned senior counsel appearing for the appellant has submitted that the Will is surrounded by suspicious circumstances as in the written statement defendants have not pleaded that Sub-Registrar came to the hospital to register the Will. He further submitted that Smt Tej Kaur had suffered a brain hemorrhage on 11.02.2001 and Dr. Surinderjit, who has appeared as PW8 has stated that late Smt. Tej Kaur was unconscious as per report. He further drew attention of the Court to Ex.PW9/1, a certificate issued by Dr. J.S.Sarao, who was working in the hospital where late Smt. Tej Kaur was admitted in which it has been certified that no Will has been executed in the hospital premises. He further drew attention of the court to the evidence of DW8, a registry clerk, who has stated that there are 2 of 6 ::: Downloaded on - 12-05-2019 08:58:58 ::: RSA No.3645 of 2016 (O&M) -3- cuttings/tampering on the Will. He has also submitted that late Smt. Tej Kaur had executed a General Power of Attorney in favour of Sh. Teja Singh, her brother on 20.03.2001, which was cancelled. On the same day a fresh General Power of Attorney was executed in favour of Gursharan Singh.
On the other hand, learned counsel for respondent no.1 has pointed out that in the written statement, only facts are required to be pleaded and that also in concise form as provided in Order 6 Rule 2 of the Code of Civil Procedure and hence the evidence is not required to be pleaded. He further submitted that no doubt late Smt. Tej Kaur had suffered brain hemorrhage on 11.02.2001 and hence she was immediately moved and got admitted in Amar Hospital, Patiala, but that was a mild brain hemorrhage and she recovered within 2 days. Since, she was old and therefore, she expressed her wish to execute a Will and, therefore, advocate, attesting witnesses and sub-registrar were requested and they executed and registered the Will in the hospital itself. He has submitted that the statement of Dr. Surinderjit, PW8 is vague as he has just stated that at the time of admission the patient was unconscious but there is no certification that she was not conscious at the time of execution of the Will. The Will was executed and registered after a period of 5 days from the date she was admitted in the hospital. He further pointed out that late Smt. Tej Kaur was discharged from the hospital on 21.02.2001 and thereafter she lived for a period of 3 months. He further pointed out that the statement of registry clerk is factually incorrect as there is neither any cutting nor any tampering on the Will which is Ex.DW1/2. He further submitted that late Smt. Tej Kaur was hail and hearty after having suffered a initial set back and it was for this reason she executed two General Power of Attornies on 3 of 6 ::: Downloaded on - 12-05-2019 08:58:58 ::: RSA No.3645 of 2016 (O&M) -4- 20.03.2001. Hence, he submitted that the appeal filed by the plaintiff- appellant deserves to be dismissed.
This court has analyzed the arguments of learned counsel. There is substance in the arguments of learned counsel for respondent no.1. The pleadings have to be only with respect to the fact and that also in concise form. Order 6 Rule 2 of the Code of Civil Procedure does not permit incorporation of evidence in the pleadings. In the pleadings, defendants have elaborately stated as to how the Will was executed. The factum that she suffered from brain hemorrhage is also mentioned. Thus, the evidence led by the defendants cannot be said to be beyond pleadings.
As regards argument of learned counsel that late Smt. Tej Kaur was unconscious. Learned counsel for respondent no.1 is correct that the statement of Dr. Surinderjit is based upon the record which recites that at the time of admission in the hospital, she was unconscious. However, on that basis presumption cannot be drawn that she remained unconscious for next 5 days. Plaintiff has not led any evidence to prove that on 16.02.2001 late Smt. Tej Kaur was not in a fit state of mind to execute and get the Will registered.
In the present case, as noted above, the execution of the Will and registration thereof has been proved by examination of both the attesting witnesses as well as scribe. The scribe has also stated that the entry of the Will also entered in his register and late Smt. Tej Kaur has thumb marked the entry at Sr. No.27.
With respect to the next argument, this court has carefully seen the Will which is exhibited on the file. The only cutting is with respect to 4 of 6 ::: Downloaded on - 12-05-2019 08:58:58 ::: RSA No.3645 of 2016 (O&M) -5- the name of father of the attesting witness which is with the typewriting machine. There is no cutting on the name of the attesting witnesses or in the entire body of the Will. Although, learned senior counsel appearing for the appellant has submitted that there is some over writing on the date which has been written by the sub-registrar at the time of endorsement, however, the over writing is not visible to the naked eye.
Plaintiff has come to the court doubting correctness of the registered Will. It was the duty of the plaintiff to at least produce that material including examination of the sub-registrar to create doubt in the mind of the court that the Will is not genuine.
No doubt, the propounder of the Will is required to prove the execution of the Will and remove all the surrounding suspicious circumstances but the person, who is doubting the correctness of the Will cannot be expected to remain a silent spectator by just pointing out small errors here and there to create doubt.
Still further, late Smt. Tej Kaur remained alive for a period of 5 months and she executed two General Power of Attorneys on 20.03.2001 in the office of the Sub-Registrar. In other words, it is proved that late Smt. Tej Kaur recovered and was in a position to move. The Will also has photographs of the executant, correctness whereof are not disputed.
Still further, the plaintiff has not examined any doctor who had attended late Smt. Tej Kaur. In May, 2001, when late Smt. Tej Kaur died. It has come in evidence that she was cremated and her last rites were conducted by her brothers and not by the husband-appellant.
In view thereof, this court does not find any ground to interfere with the concurrent findings of fact arrived at by both the courts below.
5 of 6 ::: Downloaded on - 12-05-2019 08:58:58 ::: RSA No.3645 of 2016 (O&M) -6- The regular second appeal is dismissed.
March 28, 2019 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
6 of 6
::: Downloaded on - 12-05-2019 08:58:58 :::