Punjab-Haryana High Court
Prithi Singh vs Saran Singh And Ors. on 5 October, 2005
Equivalent citations: (2006)144PLR293
Author: S.S. Saron
Bench: S.S. Saron
JUDGMENT S.S. Saron, J.
1. The plaintiff-appellant Prithi Singh filed a suit for declaration to the effect that he is owner in possession of land which is a "Gair Mumkin Bara" as detailed in the head note of the plaint in Village Lalhari Tehsil Jagadhari. The suit was filed against Saran Singh and Prem Singh sons of Gurdit Singh and Bishan Singh son of Bir Singh (defendants-respondents). By way of consequential relief the plaintiff-appellant also sought permanent injunction against the defendants restraining them from interfering in his peaceful possession. The suit of the plaintiff was dismissed by the trial Court by judgment and decree dated 5.2.1996. The plaintiff aggrieved against the same preferred an appeal before the District Judge which was dismissed by the learned Additional District Judge. He has thus now preferred this regular second appeal.
2. The dispute in the case relates to the estate of one Sadhu Singh who died on 17.5.1988. The deceased was the owner in possession of the Bara in dispute. He died issueless. In order to appreciate the relationship of the parties the following pedigree table may be noticed:
BIR SINGH | _______________________________________________________________________________ 1 2 3 4 5 6 Gurdit Kartar Faquir Sadhu Bishan Kishan Singh Singh Singh Singh Singh Singh | | | (Defendant | | | | No. 3) | | | | | |
1.Saran Singh (Issueless & (Issueless & Prithi Singh (Issueless (Defendant No. 1) unmarried) unmarried) (Plaintiff) unmarried)
2.Prem Singh (Defendant No. 2)
3.Ram Singh
3. Prithi Singh (plaintiff) is the son of Bishan Singh. The defendants No. 1 and 2 Saran Singh and Prem Singh are sons of Gurdit Singh and Bishan Singh (defendant No. 3) is father of plaintiff Prithi Singh. Sadhu Singh (deceased) is the brother of Bishan Singh (defendant No. 3) and Gurdit Singh the father of defendants No. 1 and 2. The claim made by the plaintiff-appellant Prithi Singh is with regard to the Bara of Sadhu Singh who died on 17.5.1988. He claims the suit property on the basis of a registered Will dated 8.12.1986 (Ex. P. 1) in his favour. It is alleged by the plaintiff that Sadhu Singh deceased used to live with him and he served him during his life time. His last rites were also performed by him (Plaintiff) and his death was also reported by him to the Halqa Patwari. However the mutation of the estate of Sadhu Singh was sanctioned in favour of defendants No. 1 and 2 Saran Singh and Prem Singh sons of Gurdit Singh on the basis of an unregistered Will dated 1.5.1988 (Ex. D. 1) which is stated to be false and fraudulent. On notice Bishan Singh (defendant No. 3) father of the plaintiff did not contest the suit and he rather supported the case of the plaintiff. It was stated that Sadhu Singh (deceased) who was his real brother was living with the plaintiff and he gifted his property in favour of the plaintiff. The unregistered Will (Ex. D. 1) alleged to have been made in favour of defendants No. 1 and 2 it is stated was a forged document and did not convey any title to them. Defendants No. 1 and 2 however contested the claim of the plaintiff. According to them they were close relatives of the deceased Sadhu Singh being his brother's sons and thus they were entitled to the property of the deceased. It was stated that the Will in favour of the plaintiff was false forged and a fabricated document and had been manipulated by them to grab the property. The Will dated 1.5.1988 executed by Sadhu Singh (deceased) in their (defendants No. 1 and 2) favour was stated to be valid and genuine. Therefore it is submitted that the mutation in respect of the estate of the deceased Sadhu Singh had been rightly sanctioned in their favour by the Assistant Collector 1st Grade Jagadhri on 16.3.1989. The plaintiff filed his replication and reiterated his claim to the suit property. The learned trial Court on 13.6.1990 framed the following issues:
1. Whether the plaintiff is owner in possession of the land as fully detailed in the head note of the plaint? OPP.
2. Whether deceased Sadhu Singh executed a registered valid will dated 8.12.1986 in favour of the plaintiff if so to what effect? OPP.
3. Whether the alleged will dated 1.5.1988 executed by deceased Sadhu Singh in favour of defendants No. 1 and 2 is valid and genuine one? OPD-P2.
4. Whether the mutation No. 143 sanctioned in favour of defendants No. 1 and 2 on the basis of will dated 1.5.1988 is valid? OPD.
5. Whether the plaintiff has no locus standi to file the present suit? OPD.
6. Whether the suit is not maintainable? OPD.
7. Whether the defendants are entitled to special cost under Section 35-A CPC? OPD.
8. Relief
4. The plaintiff in order to prove the Will (Ex. P. 1) in his favour examined the scribe of the Will Phool Chand (PW-1) and the attesting witnesses Amar Singh (PW-2) and Sawan Ram (PW-3). Besides he himself appeared in the witness box as PW-4. He proved on record the photostat copy of the Will dated 8.12.1986 (Ex. P. 1). Defendants No. 1 and 2 examined Maghi Ram (DW-1) scribe of the Will dated 1.5.1988 (Ex. D. 1) in their favour. Dr. Mam Chand (DW-2) and Sunder Singh Lambardar (DW-3) attesting witnesses of the Will (Ex. D. 1) were also examined. Prem Singh (defendant No. 2) examined himself as DW-4 and they adduced the copy of the Will dated 1.5.1988 (Ex. D. 1) in their favour. Besides the order dated 31.7.1990 (Ex. D. 2) passed by the Collector Yamuna Nagar in appeal against the order dated 16.3.1989 was proved. Jamabandi for the year 1989-90 (Ex. D. 3) Khasra Girdawri (Ex. D. 4) and copy of the order dated 16.3.1989 (Ex. D. 5) passed by the Assistant Collector 1st Grade Jagadhri were also produced and proved on the record. The learned trial Court after considering the matter held that the Will dated 8.12.1986 (Ex. P. 1) executed by Sadhu Singh deceased in favour of the plaintiff Prithi Singh was proved to be a valid Will in his favour. However the Will dated 1.5.1988 (Ex. D. 1) was also held to be valid. The Will Ex. D. 1 being a later Will to the Will in favour of the plaintiff it was held that defendants No. 1 and 2 were entitled to the "Gair Mumkin Bara" of the deceased Sadhu Singh. The suit of the plaintiff was accordingly dismissed. In appeal the findings recorded by the trial Court were upheld and the appeal filed by the plaintiff was dismissed.
5. Shri Anil Kshetarpal learned Counsel appearing for the appellant submits that the Will Ex. P. 1 having been proved on record the plaintiff is liable to succeed to the property in dispute as the Will Ex. D. 1 alleged to be in favour of defendants No. 1 and 2 is a forged document. It is contended that the learned trial Court while deciding issue No. 3 had observed that both the parties had failed to prove the thumb impression of the deceased Sadhu Singh. It is submitted that the plaintiff during the pendency of his appeal before the lower appellate Court filed an application under Order 41 Rule 27 of the Code of Civil Procedure ('C.P.C.' - for short) seeking permission to lead additional evidence to the effect that the appellant would like to compare the thumb impression existing on both the Wills with the standard thumb impression of deceased Sadhu Singh appearing on the pension paper of late Shri Sadhu Singh. Sadhu Singh it is stated was getting old age pension from Haryana State. However the application of the plaintiff was erroneously rejected by the learned lower appellate Court. Therefore the learned lower appellate Court misdirected itself in deciding the application. Besides it is contended that the Will Ex. D. 1 in favour of defendants No. 1 and 2 records that if any of his heirs produced any other Will the same may be treated as false in the presence of the later Will dated. 1.5.1988 (Ex. D. 1).Therefore it is contended that reliance has wrongly been placed on the Will dated 1.5.1988 (Ex. D. 1). It is also contended that the Will dated 1.5.1988 (Ex. D. 1) bears the right hand thumb impression of some one other than the testator and affixation of right thumb impression creates suspicion. Besides the Will dated 1.5.1988 (Ex. D. 1) was not written by any regular Deed Writer. The death of Sadhu Singh took place 16 days after the execution of the alleged subsequent Will (Ex. D. 1) and this creates doubt and suspicion with regard to the said Will.
6. In response Shri S.S. Dinarpur Advocate learned Counsel for the defendants-respondents No. 1 and 2 submitted that both the Courts below have reached a firm finding of fact with regard to the Will dated 1.5.1988 (Ex. D. 1) and the findings of fact reachedat by the Courts below do not call for any interference in this regular second appeal. It is contended that the Will (Ex. D. 1) in favour of the defendants-respondents No. 1 and 2 is a legal and valid Will which has been duly proved by leading cogent and convincing evidence.
7. I have given any thoughtful consideration to the contentions of the learned Counsel appearing for the parties. It is appropriate to note that the defendants No. 1 and 2 do not challenge the findings recorded by the Courts below insofar as the Will Ex. P. 1 in favour of the plaintiff-appellant is concerned. Therefore the question which is primarily in dispute is regarding the validity of the Will Ex. D. 1 which has been set up by the defendants-respondents No. 1 and 2 and is assailed by the plaintiff-appellant. From the contentions that have been raised the question of law that requires consideration is whether when the normal practice is to put the left thumb impression by male executants of the documents whether affixing right hand thumb impression on an unregistered Will dated 1.5.1988 (Ex. D. 1) which is contrary to the normal practice create any suspicious circumstances in the execution of the said Will.
8. The Will (Ex. D. 1) set up by the defendants-respondents No. 1 and 2 was scribed by Maghi Ram. In his deposition Maghi Ram (DW-1) states that he knew the parties who are of his village. It is stated that Sadhu Singh deceased is the younger brother of father of Prem Singh etc. (defendants No. 1 and 2) and he had scribed the Will on the asking of Sadhu Singh as per his desire and he had stated that his nephews Prem Singh and Saran Singh (defendants No. 1 and 2) were serving him and that in lieu of their services he was executing the Will in respect of his property in their favour. It is further stated that he (Maghi Ram DW-1) had scribed the Will as per the wishes of Sadhu Singh. The Will was read over to him and after hearing it he thumb marked it. At that time there were five persons present outside namely Sunder Singh Lambardar Dr. Mam Chand Saran Singh he himself and Sadhu Singh. Sunder Singh Lambardar had put his signatures on the Will and Dr. Mam Chand had also signed the Will which he recognizes on the Will. It is further stated by Maghi Ram (DW-1) that the mental condition and health of Sadhu Singh was all right and he could form an opinion of what is good or bad for him. He had seen the original Will and attested copy of the same was Ex. D. 1. In his cross-examination it is stated that he was in the military and he retired in 1987. He remained posted at J&K etc. He however does not know as to how many brothers are Sadhu Singh etc. Dr. Mam Chand appeared as DW-2 who has also stated about the execution of the Will by deceased Sadhu Singh. He has stated that he knows the parties who are of his village. He had seen Sadhu Singh deceased who was of his village. Sadhu Singh was younger brother of father of Saran Singh etc. It is stated that the deceased in his life time before his death had executed a Will in favour of Saran Singh and Prem Singh. He had seen the original Will and Ex. D. 1 was its copy. Sunder Singh Lambardar appeared as DW-3. He also stated that he knows the parties who are of his village. He had seen Sadhu Singh who are five-six brothers. It is stated that Sadhu Singh used to reside with Prem Singh and Saran Singh and they used to look after him. It is further stated that Sadhu Singh had executed a Will in favour of Prem Singh and Saran Singh.
9. It is well known that the onus probandi to prove a Will lies in every case primarily on the party propounding the Will. It is for the propounder to show and satisfy the conscience of the court that the instrument so propounded is the last Will of a free and capable testator. Ordinarily the burden of proving the due execution of the Will is discharged if the propounder leads evidence to show that the Will bears the signature or mark of the testator and that the Will is duly attested.
10. The Will (Ex. D. 1) in the case in hand is a photostat certified copy. A perusal of the Will shows that the thumb impression of the testator are at the end of the page where the Will finishes. The thumb impression is covering some written portion of the Will even. Besides the thumb impression of the testator has also been put in the left side margin of the Will. A reading of the Will as a whole shows that there is no mention of the earlier Will Ex. P. 1 executed in favour of the plaintiff. It is merely stated that if any of his other heirs produces any other will the same may be treated as false and in the presence of the present will he will not get anything. The position on record is that the will dated 8.12.1986 (Ex. P 1) in favour of the plaintiff has been proved to have been duly executed by the testator Sadhu Singh. In this appeal the execution of the said Will (Ex. P 1) has not been disputed by the defendants. The learned trial Court has considered the will dated Ex. D 1. As per the statement of the attesting witness Dr. Mam Chand (DW-2) it has been stated that he is a Postman of the village and used to distribute old age pension in the village. As per this witness Saran Singh (defendant No. 1) was present at the time of execution of the will (Ex. D 1) but Prem Singh (defendant No. 2) was not present at that time. He does not know any brother of Sadhu Singh nor has he seen his house. The evidence of Sunder Singh Lambardar (DW-3) has also been considered who stated that Sadhu Singh made a Will of his property in favour of Prem Singh and Saran Singh (defendants No. 1 and 2) in their presence. As a matter of fact the right of thumb impression of the testator Sadhu Singh has been put on the Will (Ex. D 1) Insofar as this aspect regarding affixing the right thumb impression on the Will (Ex. D 1) is concerned it was observed by the learned trial Court that there was no doubt that generally left thumb impression is put on any document if it was executed by a male member. However such like technicalities are known to a regular petition writer and layman is not expected to know such technicalities of the thumb impression. It was further observed that on perusing the evidence of the Document Expert who was examined by the plaintiff as PW-5 it was quite evident that both the thumb impressions put on both the parties had not tried to prove the thumb impression from any admitted source of thumb impression of the deceased Sadhu Singh. After considering the evidence and material on record it is appropriate to note one aspect which is evident and glaring in nature that is the right thumb impression of Sadhu Singh has been put on the Will (Ex. D 1). The general practice in the villages as has also been observed by the trial Court is that left thumb impression of the testator is put. The Will (Ex. D. 1) in favour of the defendants No. 1 and 2 is an unregistered one. The object of putting a right thumb impression on the Will could only be for the purpose of avoiding comparison of the thumb impressions of the testator with other admitted and available thumb impressions. The plaintiff has examined an expert i.e. Mr. N.K. Jain Document Expert Ambala (PW 5) in rebuttal. His examination was objected to on the ground that he cannot be examined in rebuttal. The objection was kept open. Mr. N.K. Jain Document Expert (PW-5) stated that he passed the course of Forensic Science and Criminology from Delhi University in 1973 and since then he was working as Hand-writing and Finger Expert. In this case he examined the disputed thumb impression Mark-Q-1 on the left margin space of the Will Ex. D. 1 and compared it with the disputed thumb impression of Sadhu Singh Mark - Section 1 to Section 3 on the will Ex. P. 1. He examined all these thumb impressions in original and in Court also took photographs which he prepared himself. In his opinion the disputed thumb impression of Q. 1 on the Will Ex. D. 1 belongs to a right hand as was appearing from its top or the apex ridges of the disputed thumb impressions Section 1 and Section 2 which was sliding towards the right down side. It is further stated that on the other hand the thumb impressions mark-Section 1 to Section 2 on the Will Ex. P. 1 are of the left hand as was apparent from their top or apex ridges were sliding towards the left down side. In his opinion the disputed thumb impression Mark-Q.1 on the Will Ex. D. 1 and Mark-Section 1 and Section 2 on the Will dated 8.12.1986 (Ex. P. 1) could not be compared with each other being of different hands. The detailed reasons for his opinion were given by him in his report Ex.PW-5/9. From the said evidence it apparently comes out that the object to put the right thumb impression on the Will (Ex. D 1) was obviously to avoid the comparison of the same with other admitted and standard thumb impressions of the testator.
11. It is the common practice in the rural areas that except on account of some physical disability it is the left thumb mark which is put on important documents like a Will or other documents creating a right or title in some property by the males and right thumb impression is put by the ladies. In fact even in respect of Panchayat proceedings and other day to day working amongst the rural persons as a matter of practice and habit the left thumb impression is put on documents by male members and right thumb impression by ladies where because of their illiteracy they are unable to sign. This being the practice it is easy in case of any doubt or ambiguity to compare the signatures with the standard signatures of the person concerned. Deviating from this practice would result in great hardship and any one wanting to set up a false document like a Will of someone could easily be able to do so by putting a right thumb impression in the case of a male and left thumb impression in the case of a lady so as to avoid the comparison with their standard and admitted thumb impressions which are otherwise available. Therefore this practice is liable to be discouraged and it is only when it can otherwise be shown as to why the standard form of putting the left thumb impression in the case of a male and a right thumb impression in the case of a female is being deviated from the court would consider the question in the facts and circumstances of each case. Physical disability to put the left thumb impression in the case of a male and right thumb impression in the case of a lady can be a valid ground for deviating from the practice.
12. In the case in hand no reason has been given for deviating from this practice. The reason recorded by the learned trial Court that Maghi Ram (DW-1) was not a regular deed writer is hardly of any substance. In fact one of the attesting witness of the Will (Ex. D 1) is a Lambardar and he must have in his capacity as a Lambardar attested various documents and in doing so is presumed to be fully aware that on documents like Will etc. it is the left thumb impression in the case of males and right thumb impression in the case of ladies that is put. Therefore in my view the reasons and findings recorded by the Courts below in this regard are without any merit. An attempt to defeat the possibility of the thumb impression being compared if it is put contrary to the normal practice cannot be ruled out. Therefore it is evident that in the case in hand the right thumb impression of the testator has been put so that the thumb impressions cannot be got compared. This circumstance in the facts and circumstances of the case makes the Will (Ex. D 1) set up by the defendants respondents No. 1 and 2 to be doubtful inasmuch as the thumb impression could not be got compared. In Smt. Harbans Kaur v. Anoop Singh 1991 Shimla Law Journal 217 this Court considered the question as to which thumb impression is normally to be affixed by a male executant on a sale deed. It was held that petition writers always get the left thumb impression of a male on a sale deed and in case it is not possible to do so only then the right thumb impression of a male executant is got affixed. The same would apply to documents like Will is executed by males. Therefore for failure to put the proper thumb impression i.e. left thumb impression on the Will in question makes the same doubtful and suspicious in nature. The question that the document expert was examined in rebuttal is quite inconsequential and would not make any difference at this stage. Even though such an evidence was to be lead in the affirmative however the same can always be taken on record as additional evidence depending on the facts and circumstances of each case. Besides the said evidence is necessary to be considered for examining the validity of the document in question. The appellant also filed an application under Order 41 Rule 27 C.P.C. before the learned lower appellate court for permission to lead additional evidence on his pension papers. The said application was disallowed. In the circumstances the taking into account the evidence of document expert would be necessary so as to do complete justice in the case.
13. The circumstances that appear in the case are that the Will (Ex. D 1) set up by the defendants No. 1 and 2 is an unregistered one. Though registration of a Will is not compulsory however its registration goes a long way to show its genuiness and raises a presumption of its validity. No reasons has been given as to why the Will dated 1.5.1988 (Ex. D 1) was not got registered. In respect of the earlier Will Ex. P 1 evidence has come on the record that it could not be got registered on the day of execution of the Will as the Tehsildur (Sub Registrar) did not remain present in his office and he had gone on tour and after 15-16 days it was got registered. The Will Ex. D 1 is not scribed by a regular deed writer. It was recorded only on a paper and the prominent thumb impression of the testator is in the left margin of the Will and the thumb impression below the Will is not complete and the lower portion of the thumb impression is cut and the complete thumb impressions is not on the lower portion of the page of the Will. The upper portion of the thumb impression below the Will is on the writing portion of the Will and even otherwise it is the right thumb impression. Besides 16 days after the execution of the Will (Ex. D. 1) does raise a suspicion as regards its genuiness. Nothing has been shown by the defendants No. 1 and 2 that they were indeed serving the deceased Sadhu Singh which would have impelled him to execute the Will in their favour. The jamabandi of the year 1989-90 (Ex. P. 3) shows Sadhu Singh son of Bir Singh to be the owner of the "Gair Mumkin Bara". The Khasra Girdawari Ex. D 4 for the period from Kharif 1990 to Rabi 1995 also shows Sadhu Singh deceased to be owner in possession of the Gair Mumkin Safeda. In the circumstances answer to the question of law that has been framed is that where it is general practice that left thumb impression is put on the document in the case of a male executant the putting of right thumb impression without sufficient cause of explanation would create a doubt as to the genuineness of the document.
14. For the foregoing reasons the regular second appeal is allowed and the judgments and decree of the Courts below are set aside and the suit for declaration filed by the plaintiff-appellant is decreed in his favour.