Punjab-Haryana High Court
Dial Singh And Another vs Mehar Singh (Deceased) Through Lrs ... on 28 March, 2012
Author: K.C.Puri
Bench: K.C.Puri
RSA No. 42 of 1987 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No. 42 of 1987
Date of decision 28.03. 2012.
Dial Singh and another
...... Appellants.
versus
Mehar Singh (Deceased) through Lrs Surinder Singh
...... Respondents.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present : Mr. R.S.Ghumman, Advocate and
Mr. J.S.Cooner, Advocate for the appellants.
Mr. Chaman Lal, Advocate for respondents.
K.C.PURI, J.
Dial Singh and another defendants-appellants have directed the present regular second appeal against the judgment and decree dated 24.9.1986 passed by learned Additional District Judge, Jalandhar vide which the appeal filed by the plaintiff against the judgment and decree dated 24.7.1984 passed by the trial Court was set aside and the suit of the plaintiff was decreed.
2. The facts in brief are that Jarnail Singh was the owner of the suit land, situated at village Nangal Jattan. He was staying in England since long and died there on 20.7.1968. During the life time of Jarnail Singh, plaintiff was in cultivating possession of the suit land and after his RSA No. 42 of 1987 2 death, he became the owner of the suit land, to the extent of ½ share, and defendant no.2 also became owner to the extent of ½ share, as the plaintiff and defendant no.2, are the only legal heirs of Jarnail Singh. Jarnail Singh died intestate. Whenever Jarnail Singh used to visit India, he used to stay with the plaintiff. He used to write letters to him. He was un-married and issueless. The plaintiff and defendant no.2 being the real brothers of Jarnail Singh, are entitled to succeed to the extent of ½ share each. Jarnail Singh has not executed any Will in favour of anybody. Defendant no.1 who is son of defendant no.2, declares that Jarnail Singh has executed some document in his favour, so he has become the owner of the whole land in dispute. On the basis of the alleged document, defendant no.2 made an application to the revenue authorities to get the mutation sanctioned in favour of defendant no.1. It has been further pleaded that if at all there is any will in possession of the defendants, the same is a forged document. The defendants have got no right to dispossess the plaintiff and to alienate the suit land, to the extent of the share of the plaintiff. Hence the suit.
3. The defendants filed a joint written statement alleging that the suit is not maintainable in the present form, as the plaintiff is not in possession of the suit land. The suit is not within time. It is admitted that Jarnail Singh was staying in England and he died on 20.7.1968. It is denied that during the life-time of Jarnail Singh, the plaintiff cultivated the suit land. It has also been denied that the plaintiff and defendant no.2 are the only legal heirs of Jarnail Singh deceased. On the other hand, Jarnail Singh, during his life time in his sound disposing mind, executed a valid will, dated 26.10.1966, duly registered in favour of defendant no.1 as he had been RSA No. 42 of 1987 3 rendering services to the deceased. Jarnail Singh did not stay with the plaintiff while he visited India. It is admitted that Jarnail Singh died issue- less. The will in favour of defendant no.1 is not a forged and fabricated document, so he has got every right to sell the suit land. As the plaintiff is not in possession of the disputed land, so the question of his dispossession does not arise.
4. In the replication, plaintiff controverted the allegations of the written statement and re-iterated those of the plaint.
5. On the pleadings of the parties, the following issues were framed :-
1. Whether the plaintiff is the owner in possession of the land in dispute?OPP
2. Whether the deceased Jarnail Singh, executed a valid will dated 26.10.1966, in favour of defendant no.1? If so, its effect?OPD
3. Whether the suit is not within time?OPD
4. Whether the plaintiff is entitled to the possession of the suit land as an alternative relief?OPP
5. Relief.
6. The parties have led their respective evidence on the aforesaid issues. In the light of the same and after appraisal of the evidence, the trial Court dismissed the suit of the plaintiff vide judgment and decree dated 24.7.1984.
7. Feeling dissatisfied with the judgment and decree dated 24.7.1984, plaintiff had preferred the appeal before First Appellate Court.
The First Appellate Court after hearing the learned counsel for the parties and re-appraisal of the evidence accepted the appeal vide judgment and RSA No. 42 of 1987 4 decree dated 24.9.1986.
8. Feeling dissatisfied with the judgment and decree dated 24.9.1986 passed by First Appellate Court, the present regular second appeal has been directed by the defendants-appellants.
9. Learned counsel for the appellants on 16.2.2012 submitted that following substantial questions of law have arisen in the present appeal for adjudication :-
1. Whether mere suit for declaration is maintainable when respondent/plaintiff is not found in possession of the suit land by both the courts below ?
2. Whether the ld. Lower Appellate Court has misread, misconstrued and misinterpreted the oral as well as documentary evidence on record and as such the findings by the ld. Lower appellate court are perverse ?
3. Whether the findings of the ld. lower appellate court qua the registered Will (Ex. P/2) are contrary to law and evidence on record ?
4. Whether the judgment and decree dated 24.07.1984 passed by learned Additional Senior Sub Judge deserves to be restored being based upon proper appreciation of evidence and law ?
5. Whether judgment and decree dated 24.09.1986 passed by learned Additional District Judge under appeal are liable to be set aside ?
6. Whether the suit filed by the respondent/ plaintiff is highly time barred ?
10. Learned counsel for the appellants has submitted that First Appellate Court has reversed the well reasoned judgment and decree passed by the trial Court on flimsy grounds. The controversy in the present lis resolves from the execution of a registered Will dated 26.10.1966 by Jarnail Singh in favour of the appellants, which stands duly proved on the RSA No. 42 of 1987 5 record in accordance with law. Phuman Singh (DW-2), the marginal witness of the Will has proved the execution and registration of the Will. Sohan Lal, scribe of the Will had died. Piara Singh Sarpanch, the other marginal witness of the Will, is inimical towards the appellants. The trial Court has misread and misinterpreted the statement of the plaintiff. He has categorically stated that Jarnail Singh deceased had been living with the defendants/appellants in England and the plaintiff has no concern with the said Jarnail Singh. He has also admitted the fact that Dial Singh defendant arranged the presence of Jarnail Singh deceased in England and the latter had been living with Jarnail Singh till his death. It is also not disputed that Jarnail Singh died without any child or wife. There was every reason for Jarnail Singh to execute the Will in favour of defendants-appellants. The registration of the Will goes a long way to prove that Jarnail Singh has voluntarily executed the Will. The First Appellate Court observed that only Phuman Singh (DW-2) has been produced to prove the Will. It has been further held by the First Appellate Court that neither scribe nor the other witness of the Will has been examined. It is submitted that scribe had already died and as such he could not be produced. Piara Singh, the other witness of the Will, was inimical towards the defendant as well as attorney of the defendant. The other observation made by the First Appellate Court is that Phuman Singh has not explained how he knew Jarnail Singh and that he belongs to village Nangal Jattan. Phuman Singh was a Lamberdar and he has categorically stated that deceased has executed the Will in favour of defendants- appellants. Mere fact that his village is at a distance of 20- 25 k.m., from the village of the Jarnail Singh does not make RSA No. 42 of 1987 6 any difference more so when Piara Singh Sarpanch of the same village and that of executant were present. There is nothing unnatural in becoming Phuman Singh the witness of the Will. Mere fact that Will is a typed document does not make it a suspicious document. The First Appellate Court has misread and misinterpreted the evidence regarding execution of the Will.
11. It is further contended that mere suit for declaration is not maintainable. Both the Courts below have not found the plaintiff in possession of the suit property and as such the declaratory suit is not maintainable. The finding of the First Appellate Court regarding execution of the Will is contrary to the evidence on the record. It is further contended that suit is not within limitation. Learned counsel for the appellants in support of their contentions have relied upon the following authorities :-
(1) Charan Singh and another vs. Amar Singh and others 2012 (1) R.C.R. (Civil) 311. (2) Malkiat Kaur vs. Hardev Singh & Ors 2011(2) CivCC page 854 12. Learned counsel for the plaintiff now respondent has
supported the judgment and decree of the First Appellate Court.
13. I have given my thoughtful consideration to the rival submissions made by both the counsel for the parties.
14. The Will is required to be proved in accordance with Section 63 of the Indian Succession Act, 1925 and also in accordance with Section 68 of the Indian Evidence Act. The legal requirements for proving execution of Will can be summarised as under :-
RSA No. 42 of 1987 7
"(i) A Will like any other document is to be proved in terms of provisions of Indian Succession Act and the Indian Evidence Act ;
(ii) Onus of proving the Will is on the propounder ;
(iii) Testamentary capability of the propounder must also be established ;
(iv) The execution of the Will by the testator has to be proved :
(v) At least one attesting witness is required to be examined for the purpose of proving the execution of the Will ;
(vi) It is required to be shown that the Will has been signed by the testator with his free Will and that at the relevant time, he was in sound disposing state of mind and understood the nature and effect of disposition ;
(vii) It is also required to be established that he has signed the Will in the presence of two witnesses, who attested his signatures in his presence or in the presence of each other ;
(viii) When there exist suspicious circumstances, the onus would be on the propounder to explain the same to the satisfaction of the court before it can be expected as genuine ;
(ix) The Court must satisfy its conscience before its genuineness is accepted by taking a rationale approach, 1959 Supp (1) SCR 426 : 1962 AIR (SC) 567 : 1962 (3) SCR 195 : 2007(4) RCR (Civil) 749 : 2007 (6) Recent Apex Judgment (RAJ) 735, relied."
15. The trial Court after apprising the evidence on the file reached to the conclusion that Will is duly proved in accordance with Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. However, the first Appellate Court upset the said finding and held that Will is not proved and is surrounded by suspicious circumstances.
16. The Will is a document which has to be given effect after the death of a testator. The testator is not alive to depose about the correctness RSA No. 42 of 1987 8 of the Will. The Will can be accepted if the Court is satisfied regarding genuineness of the Will.
17. The Will is always executed to debar legal heirs in respect of inheritance. The first and foremost question is whether the beneficiaries have been able to make out a case that testator wanted to deprive the legal heirs. On the facts of the present case, it is overwhelming proved that testator wanted to deprive the legal heirs and to give benefit to the beneficiaries. Dial Singh beneficiary of the Will had settled at London. The plaintiff has admitted that Jarnail Singh after the execution of the Will had gone to London and that Dial Singh has arranged the formalities for going of Jarnail Singh to London. Jarnail Singh was not having any son or wife. So, in these circumstances, the property has to be either gone to his brothers or to the beneficiaries under the Will. Mehar Singh plaintiff has further admitted that he has no correspondence with Jarnail Singh deceased after he visited England. Mehar Singh has further admitted that at the relevant time Piara Singh was the Sarpanch of the village and there was only one Panchayat of three villages at that time. Mehar Singh has further admitted that in the revenue papers, the suit land stands in the name of Jarnail Singh. He has further admitted that Jarnail Singh never wrote any letter to the plaintiff while he remained in England. Mehar Singh has further admitted that he has also not written any letter while Jarnail Singh was in England. Jarnail Singh died in the year 1968 and the present suit was filed only in the year 1983 after having acquired the knowledge of inheritance of Jarnail Singh. The plaintiff has not agitated that fact for number of years i.e. 15 years. No doubt, there is no limitation for filing the RSA No. 42 of 1987 9 suit on the basis of inheritance but in the present case, there is concurrent finding of fact recorded by both the Courts below that appellants remained in possession of the share of Jarnail Singh. Plaintiff has further admitted that he never got the mutation entered after the death of Jarnail Singh on the basis of natural succession.
18. The Will in question is a registered document and after the execution of Will, testator remained alive for about two years. The beneficiaries arranged the visiting of deceased to England and prepared and completed all the formalities in this regard. The power of attorney of defendants/appellants has stated that deceased was being served by defendants during his stay at London and that fact has not been specifically challenged in the cross-examination but has rather impliedly admitted that fact. So, there was strong reason for the testator to ignore the natural heirs and to give the land to the defendants/appellants.
19. One another circumstance, which militates against the case of the plaintiff is that at the time of execution of the Will, the beneficiary was in England and as such he was not in a position to exert influence over the deceased. So, the Will was voluntarily executed by the deceased in favour of the defendants. The first Appellate Court has reversed the well reasoned judgment and decree on the ground that Phuman Singh belonging to a village about 20-30 k.m. away. The first Appellate Court has failed to appreciate the fact that Piara Singh Sarpanch of the village of Jarnail Singh was present at the time of execution of the Will. No doubt, Piara Singh has not been examined by the defendants/appellants but it is a civil case and the plaintiff could have examined Piara Singh to disprove the Will. Phuman RSA No. 42 of 1987 10 Singh has categorically stated that he knew Jarnail Singh. The First Appellate Court has stated that this witness has not stated that in what manner Phuman Singh was knowing Jarnail Singh. Phuman Singh has stated that the Will although was written in English but was translated to the testator in Punjabi. He has further stated that testator after admitting the contents of Will as correct had thumb marked the same and he along with Phuman Singh have attested the Will in the presence of testator and testator too thumb marked the Will in their presence. So, the requirement of Section 63 of the Indian Succession Act stands fully proved that testator and executant have signed/thumb marked the Will in presence of each other. The Will is required to be proved by calling one witness as per provisions of Section 68 of the Evidence Act. The beneficiaries have examined Phuman Singh, one of the attesting witnesses and he has duly supported the execution as well as registration of the Will.
20. The propounder of the Will has proved the execution of the Will. Testamentary capability of the propounder of the Will has also been established by Phuman Singh (DW-1). This witness has stated that testator was in sound disposing mind. Now the question arises as to whether any suspicious circumstance has occurred in the record. The answer to that question is in negative. Mere fact that Phuman Singh was a resident of another village does not make the Will as a suspicious document. The plaintiff has admitted that three Panchayats have elected one Sarpanch i.e., Piara Singh. The trial Court after appraising whole of the evidence reached to the conclusion that Jarnail Singh has duly executed the Will in favour of Dial Singh. The registration of Will dispel the suspicious circumstances if RSA No. 42 of 1987 11 any, according to the various authorities of this Court and of the Hon'ble Apex Court.
21. In authority Charan Singh and another's case (supra) testator started residing with beneficiary and she died issueless. She remained alive for four years after the execution of the Will, in those circumstances, validity of the Will was upheld. In the present case, the last rites of Jarnail Singh were performed by Dial Singh-appellant. Mehar Singh plaintiff has written a letter to Dial Singh regarding condolence of death of Jarnail Singh. So, the cumulative effect is that Jarnail Singh had love and affection with Dial Singh and in order to reward the services rendered by Dial Singh, Jarnail Singh has executed the registered Will in favour of the appellants/defendants. Sohan Lal scribe of the Will has died prior to his examination in the Court. Mere fact that it is a typed document does not make the Will as a suspicious document.
22. The First Appellate Court has also given much importance to the fact that DW-2 Phuman Singh has stated that firstly they had gone to the room of the Clerk of Registrar where on the back side, signatures of Phuman Singh, thumb mark of the testator were obtained. The Will is not a document which is required to be registered compulsorily. The normal practice is that the signatures and thumb impression are taken by the Clerk and thereafter the case is put up before the Registrar. However, that practice cannot be approved but the fact remains that Registrar must have satisfied regarding the execution of the Will. The testimony of DW-2 Phuman Singh to the effect that Piara Singh is not known to him has been RSA No. 42 of 1987 12 given weight out of proportion. The other reasoning for ignoring the Will are that Will was executed by deceased when the beneficiary was living in England, that is not a circumstance which goes against the beneficiary, rather goes in favour of the beneficiary. The beneficiary could not exert pressure on the executant to execute the will in those circumstances. Deceased had been living with Dial Singh for about two years after execution of the Will in England.
23. So from the above discussion, I am of the view that the First Appellate Court has committed illegality by misreading and misinterpreting the evidence regarding execution of the Will. The Will is duly proved and there was reason for the testator to execute the Will in favour of the defendants in view of the circumstances mentioned above.
23. Again this Court in authority Malkiat Kaur's case (supra) has held that it must be shown that the Will has been signed by the testator with his free Will and at the relevant time he was in sound disposing mind and understood the nature and effect of disposition and he signed the Will in the presence of two witnesses, who attested his signatures in his presence and in presence of each other. The said legal requirement of Section 63 of the Indian Succession Act and 68 of the Indian Evidence Act stands complied with. The provisions of Section 68 of the Indian Evidence Act calling one witness has also been complied with. There was reason for depriving the natural heirs from inheritance. So, in view of the above discussion, the finding on substantial questions of law stand returned in favour of the appellants to the extent as discussed above and those RSA No. 42 of 1987 13 substantial questions of law have been answered accordingly. It is held that Will is duly proved in accordance with Section 63 of the Indian Succession Act and 68 of the Indian Succession Act and there is no suspicious circumstances. The probabilities are also in favour of the execution of the Will.
24. So far as the submission made by counsel for the appellant that since the plaintiff is not in possession of the suit property and on that account the suit is not maintainable is concerned, that submission is without any substance. Courts are meant to advance the cause of justice and not to thwart it. If a party establishes his legal right in respect of suit property in that case Court can grant him relief of possession by using its inherent powers. However, since the plaintiff has failed to prove his legal right in the suit property in the presence of Will and as such his suit is liable to be dismissed.
25. Consequently, the appeal stands accepted. The judgment and decree dated 24.9.1986 passed by learned Additional District Judge, Jalandhar stands set aside and the judgment and decree dated 24.7.1984 passed by the trial Court stands restored.
25. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C. PURI )
JUDGE
March 28 , 2012
sv