Punjab-Haryana High Court
Surinder Singh vs Santokh Singh & Ors on 14 October, 2014
Author: Raj Mohan Singh
Bench: Raj Mohan Singh
RSA No.5331 of 2014 (O&M) 1
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
RSA NO.5331 OF 2014 (O&M)
Date of decision : 14.10.2014
Surinder Singh
... Appellant
Versus
Santokh Singh and others
...Respondents
CORAM : HON'BLE MR.JUSTICE RAJ MOHAN SINGH
Present: Ms.Anupam Sharma, Advocate
for the appellant.
Raj Mohan Singh, J.
Defendant-Surinder Singh is in second appeal arising out of the concurrent judgments and decrees passed by the courts below.
Facts of the case are necessary to be quoted here. Plaintiff- Santokh Singh filed a suit for declaration to the effect that the plaintiff is joint owner of the suit land notwithstanding anything contained to contrary in the revenue record and the Will dated 19.07.2002 in favour of defendant No.1-Surinder Singh is illegal, void ab-initio, null and void, without legal value, having no binding force on the rights of plaintiff, and the mutation No.2361 of inheritance of Kartar Kaur deceased, widow of Pritam Singh is null and void. Further relief of permanent injunction was also sought restraining defendant No.1 from alienating the suit land or by creating incumbrance over it.
It has been pleaded by the plaintiff that the suit land was owned and possessed by Pritam Singh, who was father of plaintiff Santokh Singh and Harcharn Singh, Parkash Kuar, Harbhajan Kaur, SUDHIR KUMAR 2014.10.30 14:30 I attest to the accuracy and authenticity of this document High Court, Chandigarh RSA No.5331 of 2014 (O&M) 2 Sukhchain Kaur and Simrajit Kaur. Pritam Singh was the 'Karta' of the joint Hindu family, and he executed a Will in favour of plaintiff and defendant No.2, Harcharan Singh (now deceased), and is being represented by his legal representatives, Pargat Singh, Pritam Kaur and their mother Kartar Kaur on 23.11.1962. In the aforesaid Will, Pritam Singh has specifically recited that after the death of Kartar Kaur, her share would devolve upon her two sons namely, plaintiff-Santokh Singh and Harcharan Singh. Mutation of inheritance of Pritam Singh was effected in the name of Kartar Kaur (widow), Santokh Singh (plaintiff) and Harcharan Singh (defendant No.2) at Sr. No.1039. After the death of Pritam Singh, the land in question was jointly cultivated by the plaintiff-Harcharan Singh and Smt. Kartar Kaur. Smt. Kartar Kaur executed a Will on 08.02.1996 in favour of her three grandsons namely, Surinder Singh son of Harcharan Singh, Inderjit Singh and Jatinder Singh sons of Santokh Singh, and the same was registered in the office of Sub Registrar. After about 06 years, Smt. Kartar Kaur got the aforesaid Will dated 08.02.1996 cancelled and executed second Will in favour of her grandson-Surinder Singh on 19.07.2002, and was registered in the office of Sub Registrar. This Will is claimed to be illegal, null and void by the plaintiff.
It has been claimed that the plaintiff is still joint owner in the share of his mother out of total land measuring 286 kanals 11 marlas and mutation No.2361 sanctioned on the basis of Will dated 19.07.2002 is null and void, and is having no binding effect on the SUDHIR KUMAR 2014.10.30 14:30 I attest to the accuracy and authenticity of this document High Court, Chandigarh RSA No.5331 of 2014 (O&M) 3 rights of the plaintiff, and is liable to be set aside. It has been claimed that Kartar Kaur, deceased was not competent to execute the Will regarding her share as Pritam Singh in his Will dated 23.11.1962 has recited that the property would devolve upon his two sons only, after the demise of Smt.Kartar Kaur, and Smt.Kartar Kaur deceased remained owner of her share during her life time, and thus, was having limited interest in the property. Since the Will dated 19.07.2002 is in defiance of earlier Will dated 23.11.1962, and the executant was not competent to execute the same as mentioned above, therefore, Will dated 19.07.2002 is liable to set aside.
The suit was contested by the defendants. Notice of the suit was issued to the defendants. Defendants No.1, 7 and 8 appeared and filed their written statement. Defendant Nos.2, 3, 4, 5, 6, 9 and 10 did not turn up despite service and they were proceeded against ex parte by the learned trial court. Defendant No.1 filed the written statement taking all customary pleas and contested the suit thereby claiming that Smt. Kartar Kaur wd/ of Pritam Singh acquired right in the property in her own status, and became absolute owner of the same after demise of her husband-Pritam Singh. Being master of the land of her share, she dealt with the same in her own right and free will, and was competent to dispose of the land in the manner she liked. The other defendants particularly defendant Nos.7 and 10 have nothing to do with the property. Defendant No.1 advanced his case by asserting that the Will dated 08.02.1996 was cancelled on 19.07.2002 and Smt.Kartar Kaur SUDHIR KUMAR 2014.10.30 14:30 I attest to the accuracy and authenticity of this document High Court, Chandigarh RSA No.5331 of 2014 (O&M) 4 executed the Will dated 19.04.2002/19.07.2002 in favour of defendant No.1, and got the same registered on 19.07.2002 in the office of Sub Registrar, Fazilka and the Will in question, was the last Will of the executant, Kartar Kaur and is having binding effect on all concerned. The property is claimed to be the self-acquired property of Smt.Kartar Kaur. Stand of defendants No.7 and 8 need not to be discussed as the same is not relevant in the present context as the main dispute is between the plaintiff and defendant No.1.
On the basis of the pleadings of the parties, following issues were framed by the learned trial Court:-
"1. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP
2. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP
3. Whether suit is not maintainable in the present form?
OPD
4. Relief."
Additional Issue No.1-A was also framed by the learned trial Court which is as under:-
"1-A "Whether the plaintiff is entitled for the relief of declaration as prayed for? OPP."
It seems that issue No.1 has been inadvertently repeated at issue No.2 also.
After the parties adduced their evidence on record, learned trial court recorded necessary findings on issues No.1, 2 and 1-A, and decreed the suit vide judgment and decree dated 16.03.2012.
Aggrieved by the aforesaid judgment and decree dated SUDHIR KUMAR 2014.10.30 14:30 I attest to the accuracy and authenticity of this document High Court, Chandigarh RSA No.5331 of 2014 (O&M) 5 16.03.2012 passed by the learned trial Court, the defendant No.1 filed appeal before the learned Lower appellate Court. The learned Lower Appellate Court dismissed the appeal vide judgment and decree dated 12.08.2014 thereby confirming the judgment and decree of the learned trial court.
Learned counsel for the appellant has argued that the Will dated 23.11.1962 is not proved in terms of its execution, and stressed upon the validity of Will dated 19.07.2002, executed by Kartar Kaur in his favour. Learned counsel for the appellant has argued that Will dated 23.11.1962 (Exhibit P-2) is per se admissible under Section 90 of the Evidence Act and in support of his contention, learned counsel relies upon 2010 (4) RCR (Civil), 954, Gurmail Singh and others Vs. Gurdev Singh and another and also 2009(1) RCR (Civil) 826, Bharpur Singh Vs. Shamsher Singh, wherein it has been held that presumption under Section 90 of the Evidence Act is not attracted in the case of Will which has to be proved in accordance with Sections 68 and 69 of the Evidence Act.
Learned counsel for the appellant submits that since Will dated 23.11.1962 is not proved in accordance with the provisions of the Evidence Act, therefore, the same should not be considered for the purposes of deciding the validity of Will dated 19.07.2002 in favour of the appellant. Since Will dated 19.07.2002 has been executed by Smt.Kartar Kaur after cancelling the earlier Will dated 08.02.1996, therefore, the Will dated 19.07.2002 is the last wish of Smt.Kartar SUDHIR KUMAR 2014.10.30 14:30 I attest to the accuracy and authenticity of this document High Court, Chandigarh RSA No.5331 of 2014 (O&M) 6 Kaur, and should be treated as solemn act of Smt. Kartar Kaur.
As against this, learned counsel for the respondent has argued that the Will dated 23.11.1962 (Exhibit P-2) being a 30 years old when the certified copy of the same in the form of secondary evidence was tendered in evidence. The secondary evidence was allowed by the court. The attesting witnesses of the Will in question, need not to be examined as both the witnesses have since died, and accordingly, permission was taken to lead secondary evidence relating to Will from the Court and the learned counsel for the defendants did not raise any objection in respect thereof. Therefore, certified copy of the Will is fully permissible and lawful to draw presumption under Section 90 of the Indian Evidence Act and Will is per se admissible in law. Learned counsel cites 2011(1) CCC 497 titled as PD Navghare and another Vs. S.D.Chachad and others, to submits that Will is 30 years old, and is admissible under Section 90 of the Evidence Act because the same is being produced from the proper custody, and is free from suspicion.
Before embarking upon the contention of the appellant in the context of Section 90 of the Indian Evidence Act, not applicable in case of Will, it is necessary to highlight the pleadings of the parties, which are necessary to be quoted in the present context. It is pertinent to mention here that defendant No.1 in his written statement, has not denied the execution of Will dated 23.11.1962, executed by Pritam Singh. Defendant No.1 only contended in the written statement that he SUDHIR KUMAR 2014.10.30 14:30 I attest to the accuracy and authenticity of this document High Court, Chandigarh RSA No.5331 of 2014 (O&M) 7 has no knowledge regarding the aforesaid Will. Defendant No.2 Harcharan Singh, who happens to be the father of defendant No.1, and also one of the beneficiary of Will dated 23.11.1962, did not appear to advance his case, and was accordingly, proceeded against ex parte. Even other Class-I heirs of Pritam Singh, namely, Ms.Simarjit Kaur, Ms.Harbahan Kaur @ Surjit Kaur, who were daughters of Pritam Singh, were impleaded as defendants No.5 and 6, did not choose to appear in the case and were also proceeded against ex parte. There is no averments in the written statement that the Will dated 23.11.1962 is a forged or fabricated document. No suspicion has been shown, and no circumstances have been elaborated by defendant No.1. Defendant No.1 when appeared as DW-9 in the witnesses box, has not uttered even a single word in respect of Will dated 23.11.1962 and did not allege anything in respect of its illegality, and non-execution of the same. The due execution of Will, as pleaded by the plaintiff, has not been denied by the defendants, and by not doing so. Order 8 Rule 5 CPC is fully attracted to the present case.
Every allegation of fact in the plaint, if not denied, specifically, or by any necessary implication, shall be deemed, to be admitted fact. However, the Court, may in its discretion, require any fact so admitted to be proved otherwise, than by such admission. This fact in respect of due execution of Will dated 23.11.1962 in the absence of any denial by defendant No.1 in the written statement is to be treated as admitted fact and is not liable to be challenged by defendant No.1 SUDHIR KUMAR 2014.10.30 14:30 I attest to the accuracy and authenticity of this document High Court, Chandigarh RSA No.5331 of 2014 (O&M) 8 any further. Order 8 Rule 5 CPC should be read in conjunction with Section 58 of the Indian Evidence Act which prescribes that the fact need not to be proved in any proceedings between the parties which has been admitted by them or deem to have been admitted by their pleadings. The stand taken in the written statement amounts to admission of pleadings of the plaintiff, and there is no necessity to prove the same, thereafter. However, court may in its discretion, require the admitted fact to be proved otherwise than by such admissions.
Since the court has accepted the aforesaid admission to be a lawful admission of due execution of Will dated 23.11.1962, therefore, by virtue of Order 8 Rule 5 CPC, and Section 58 of the Indian Evidence Act, the factum of due execution of Will dated 23.11.1962 cannot be pressed into service at the instance of defendant No.1/appellant, which stands proved, and is deemed to have been admitted by defendant No.1. Therefore, the court was fully justified in not invoking its discretion to prove all the admitted facts any further. The discretion has been lawfully exercised and is based upon judicial principles. The defendant-appellant intends to draw benefit from the Will dated 19.07.2002 which was based on cancellation of earlier Will dated 08.02.1996 in which father of defendant No.1 was one of the beneficiary. The Will dated 08.02.1996 is based upon the title of Smt.Kartar Kaur having 1/3rd share which she only drew from the registered Will dated 23.11.1962. In this way, the series as a whole, has SUDHIR KUMAR 2014.10.30 14:30 I attest to the accuracy and authenticity of this document High Court, Chandigarh RSA No.5331 of 2014 (O&M) 9 to be appreciated in the context of devolving the interest from one person to another. If there was no Will dated 23.11.1962, question of Smt. Kartar Kaur, having 1/3rd share of the property would not have been there in the presence of sons and all the daughters.
Since Will dated 08.02.1996 is based on title of Smt.Kartar Kaur and cancellation of the same and execution of fresh Will dated 19.07.2002 further denotes title of Smt.Kartar Kaur, therefore, she originally, derives her title by virtue of Will dated 23.11.1962. There cannot be presumed to be any doubt from this angle, and also there cannot be any doubt in respect of due execution of Will dated 23.11.1962 executed by late Shri Pritam Singh.
The second contention raised by learned counsel for the appellant is that as per Section 14 (1) of the Hindu Succession Act, Smt.Kartar Kaur is the absolute owner of the property in question. The perusal of Will dated 23.11.1962 (Exhibit P-2) shows that a life interest was created in favour of Smt.Kartar Kaur thereby mentioning that after the death of Smt.Kartar Kaur, the property which has come to the share of Kartar Kaur, would devolve upon the plaintiff, Santokh Singh and Harcharan Singh sons of Pritam Singh in equal share.
Since property has come by way of Will, therefore, the case falls under the purview of Section 14(2) of the Hindu Succession Act and in this context, learned counsel relies upon, 2010 (4) RCR (Civil), 558 , Gaddam Ramkrishnareddy and others Vs. Gaddam Rami Reddy and another to argue that full fledged right in favour of Kartar Kaur SUDHIR KUMAR 2014.10.30 14:30 I attest to the accuracy and authenticity of this document High Court, Chandigarh RSA No.5331 of 2014 (O&M) 10 under Section 14 (1) of the Hindu Succession Act cannot be presumed because she get the right for the first time by instrument in the form of Will after the commencement of the Act, and therefore, provisions of Section 14(2) of the Act would come into play and this will not convert such a right into a full fledged right of ownership of the property.
This Court is fully in agreement with the learned counsel for the respondent that Smt.Kartar Kaur acquired the right in the property after commencement of Hindu Succession Act by virtue of instrument i.e. Will dated 23.11.1962, and therefore, the present case falls under the purview of Section 14(2) of the Hindu Succession Act and Smt.Kartar Kaur cannot be treated as absolute owner of the property in question. This appeal is liable to be dismissed. The findings of the learned courts below are not found to be perverse or having suffered with any jurisdictional error. No substantial question of law worth cognizance is involved in the present case.
The present appeal is totally devoid of merits and the same is dismissed in limine.
[Raj Mohan Singh] Judge 14.10.2014 sd SUDHIR KUMAR 2014.10.30 14:30 I attest to the accuracy and authenticity of this document High Court, Chandigarh