Punjab-Haryana High Court
Santokh Singh And Ors vs Didar Singh And Ors on 5 November, 2014
Author: Rajive Bhalla
Bench: Rajive Bhalla
Regular Second Appeal No.2790 of 1987 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Regular Second Appeal No.2790 of 1987
Date of Decision: 5.11.2014
Santokh Singh and others (since deceased represented by his LRs)
..Appellants
versus
Didar Singh and others ..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
Present: Mr. Som Nath Saini, Advocate, for the appellants.
Mr. Amit Jain, Advocate, for the respondents.
RAJIVE BHALLA, J. (ORAL)
The appellants challenge judgment and decree dated 5.3.1987 passed by the Additional District Judge, Patiala reversing the judgment and decree dated 25.2.1986 passed by the Sub Judge II Class, Rajpura.
The dispute, in the present case, relates to inheritance to the estate of one Kundan Singh and though initially based upon a collusive decree and a registered will, Ex.D1, dated 13.12.1971 is now confined to the legality of the will. The trial court has held that the will is a suspicious document whereas the first appellate court has reversed this finding and held that the will is legal and valid.
Counsel for the appellants submits that a bare appraisal of the will dated 13.12.1971 reveals that it is a fabricated document. KUMAR VIRENDER 2015.03.19 17:41 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2790 of 1987 2 The will is attested by two witnesses but the main attesting witness, a Lambardar, has not been examined. The second attesting witness, DW1 Balkar Singh was not even aware of the correct age of the deceased as, while deposing in court, he has stated that the age of the deceased was 70 years, whereas it is not denied that on the date of the execution of the will, the testator was much younger. The deposition by DW3 Tehal Singh, a labourer, does not inspire confidence. The report prepared by a finger print/handwriting expert, reveals that thumb impressions affixed at the time of attestation before the Registrar, do not tally with thumb impressions appearing on the plaint in a suit, which led to the passing of the collusive, decree in favour of the respondents. The first appellate court has wrongly discarded the report by the expert. DW2 Ram Kishan, the scribe, has admitted that he did not know the testator personally and that beneficiaries were present, thereby proving the active participation of the respondents in forging the will and/or prevailing upon the free will of the testator. Counsel for the appellant further submits that if the will was executed on 13.12.1971, it should have found mention in various civil suits, filed inter parties, particularly the suit filed by the respondents against Kundan Singh, which led to the passing of a collusive decree. The absence of any reference to the will, Ex.D1, in the earlier suits, raises serious suspicion as to the legality of the will.
Counsel for the appellants also submits that in the collusive decree, the respondents claim that rights accrued to them from a family settlement, in the year 1962, while Kundan Singh himself was KUMAR VIRENDER 2015.03.19 17:41 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2790 of 1987 3 declared owner in 1977, thereby adding further suspicion to the will. The will, even otherwise, is a highly suspicious document as it does not make any reference to Kundan Singh's share, much less has any reason been assigned for disinheriting other heirs.
Counsel for the appellants submits that the following substantial question of law arises for adjudication:-
(a) Whether findings recorded by the first appellate court by ignoring the large number of suspicious circumstances, pointed out by the trial court, do not suffer from the vice of misreading of evidence, thereby rendering the judgment and decree illegal and void?.
Counsel for the respondents submits that findings recorded by the first appellate court regarding the due execution and proof of the will, do not suffer from any error, much less an error that would indicate an error of jurisdiction or of law. The will having been proved by depositions of the scribe and an attesting witness and the respondents having dispelled all suspicious circumstances sought to be urged by the appellants, the appeal is liable to be dismissed.
I have heard counsel for the parties, perused the impugned judgment and decree as well as the judgment and decree passed by the trial court and appraised the record.
The question that calls for an answer is whether the first appellate court has, misread or ignored any pleadings or evidence, thereby committing an error of law and/or of jurisdiction, rendering its findings, upholding the will, perverse and/or arbitrary recorded while recording the judgment and decree passed by the trial court? KUMAR VIRENDER 2015.03.19 17:41 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2790 of 1987 4
A brief narrative of the facts would be appropriate. Santokh Singh son of Lehna Singh, Khem Kaur and Nand Kaur, daughters of Lehna Singh, plaintiffs-appellants filed a suit for declaration claiming that decree dated 21.12.1979, passed by Sub Judge II Class, Rajpura at the behest of Kundan Singh, is not binding on their rights. The plaintiffs-appellants pleaded that the suit land was owned by their brother Kundan Singh who died on 12.5.1981. The defendants have procured a collusive decree dated 21.12.1979 against Kundan Singh on the basis of an alleged family settlement of the year 1962 by wrongly pleading that they are in cultivating possession of the land in dispute, since 1962, but the revenue record is to the contrary. The land, in dispute, was never transferred to the respondents during the life time of Kundan Singh, thereby proving that decree dated 21.12.1979 was obtained by fraud or collusion.
The defendant-respondents put in appearance, asserted validity of decree dated 21.12.1979 and in turn, set up a registered will dated 13.12.1971, executed by Kundan Singh. The plaintiff- respondents filed a replication controverting averments in the written statement.
After considering the pleadings, the trial court framed the following issues:-
"1 Whether the decree dated 21.12.1979 which was in favour of the defendants in Suit No.406 on 19.11.1979 against Kundan Singh in respect of the suit properties KUMAR VIRENDER was the result of fraud and collusion and as such the 2015.03.19 17:41 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2790 of 1987 5 same is not binding upon the plaintiffs?OPP
2. Whether the plaintiffs were not parties to the earlier suit and as such the impugned decree is not binding upon them?OPP
3. Whether the plaintiff has no locus standi to file the present suit?OPP
4. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction?OPP
5. Whether the suit of the plaintiff is false and baseless?OPP
6. Whether the plaintiffs are estopped from filing the present suit? OPP
7. Whether the defendants are the only testamentary heirs of Kundan Singh (since deceased) on the basis of his last registered will dated 13.12.1971 OPP After parties adduced their evidence, the trial court decreed the suit by holding that decree dated 21.12.1979 is collusive and, therefore, does not bind the plaintiffs. As regards Ex.D1, registered will dated 13.12.1971, the trial court discarded the will by holding that it is surrounded by suspicious circumstances, namely:-
no reason has been assigned for failure to examine the second attesting witness, the attesting witness, DW1 Balkar Singh, has given a wrong age of the deceased and DW3 Tehal Singh who is a labourer, has been procured to support the will. The trial court also relied upon a report prepared by Shri N.K.Jain finger/handwriting expert that thumb impression affixed before the Registrar does not KUMAR VIRENDER 2015.03.19 17:41 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2790 of 1987 6 tally with the thumb impression of Kundan Singh in the earlier suit. The trial court also held that no reason has been assigned for disinheriting natural heirs and also considered the ill-health of Kundan Singh as a factor to discard the will.
Aggrieved by this judgment and decree, the defendant- respondents filed an appeal. The first appellate court, affirmed the finding that judgment and decree, dated 21.12.1979, is collusive, but reversed the finding with respect to the will and held that the will is legal and valid.
A perusal of the evidence reveals that the will dated 13.12.1971 was scribed by DW2 Ram Kishan and attested by DW1 Balkar Singh and one Partap Singh, Lambardar. The will was registered with the Sub Registrar. The trial court discarded the will by holding that Partap Singh, Lambardar, has not been produced. As admitted, Partap Singh, the Lambardar, had passed away and, therefore, could not possibly be produced as a witness. DW1 Balkar Singh, the other attesting witness, stepped into the witness box and deposed that the testator affixed his thumb impression on the will in his presence and in the presence of the other attesting witnesses, whereafter they appended their thumb impressions in the presence of the testator. DW1 Balkar Singh has also deposed that thumb impressions were also appended before the Sub Registrar. DW2 Ram Kishan is the scribe to the Will who has deposed in no uncertain to terms that he scribed the will, on the instructions of the testator.
The trial court discarded the deposition by DW1 Balkar Singh by holding that he has given the wrong age of the testator. The first KUMAR VIRENDER 2015.03.19 17:41 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2790 of 1987 7 appellate court examined the evidence and held that as the discrepancy in age is not so grave, assigned clear and cogent reasons for reversing the finding by holding as follows:-
" .....Another flaw that was pointed out by the learned Sub Judge was as to the discrepancy in age that the testator gave in the court while suffering consent decree in favour of the defendants-appellants on 11.12.1979 and the age that the witness Balkar Singh gave at the time Kundan Singh executed the will. Both being illiterates, it is unreasonable to expect them to be precise about the exact age and it is a matter of common experience in the courts that illiterate witnesses are not even able to give their ages by approximation. Even then the testator in his statement on 11.12.1979 in the suit that the defendants had filed against them and in which consent decree was passed had mentioned his age as 70 years whereas Balkar Singh stated that he was 50/55 years at the time he executed the will, which was executed on 13-12-71 and as such his age by that calculation would come to 63 years on 11.12.79 and it is not such discrepancy that discredit the testimony of the said attesting witness, who admittedly belongs to said village and had indeed identified the testator before the Sub-Registrar because of his being known to the later as is evident from the entries in the endorsement by the Sub-Registrar." KUMAR VIRENDER
The finding recorded by the first appellate court is a 2015.03.19 17:41 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2790 of 1987 8 plausible view and as it is neither perverse nor arbitrary cannot be said to have been recorded by misreading any evidence. The discrepancy in describing the age of the deceased is not such a factor as would cast a doubt upon the deposition of the attesting witness, particularly when the will was registered.
As regards the report by the expert that thumb impressions affixed at the time of registration of the will do not tally with the thumb impressions appearing on the plaint of the suit which led to the collusive decree, relied as a ground, by the trial court, to discard the will was dealt with and reversed by the first appellate court by holding as follows:
" The evidence of the Handwriting Expert Mr. Jain, does not inspire any confidence when read as a whole. He was cross-examined by Mr. Atul Singla an other expert on behalf of the defendants and the brought out facts that negative the reasoning given by Mr Jain. The comparison was made by Mr. Jain with the thumb impression purporting to be of Sh.Kundan Singh on the will and also on the back of the will below the endorsement made by the Sub-Registrar with his standard thumb impression, which he affixed in the earlier suit against him by the defendants resulting in consent decree. If Mr. Jain is to be believed then the thumb impression the back of the will before the Sub-Registrar do not tally with the thumb impression on the will. It was rightly urged by the learned KUMAR VIRENDER counsel for the appellants that the defendants would not 2015.03.19 17:41 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2790 of 1987 9 be so naïve as to require the services of two persons to personate Kundan Singh particularly when the will was executed and got registered on the same day. In this context learned Sub Judge also adversely commented upon the employment of two experts by the defendants, namely, one for cross-examination of Mr. Jain and the other for making the comparison. Mr. Puri, as already mentioned was not allowed to be cross-examined and an application was made before me for his being examined by way of additional evidence to satisfy the conscience of the court that the report is given by Mr. Jain about the disputed thumb impression on will not talling with the standard thumb impression of the testator is not correct. However, I do not find it necessary to allow additional evidence being led in this behalf because the matter can be disposed of effectually on the material already on record. It may, however, be mentioned that the report of Mr. Puri is dated February 24, 1986 and he was sought to be examined on the next date, i.e., February 25,1986 and on that date, the suit was decreed, disallowing the request of the defendants."
A perusal of the aforesaid finding reveals that the first appellate court discarded the evidence of the expert, produced by the appellants, by assigning clear and cogent reasons and rightly holding that it would be preposterous to expect a party to engage two sets of people, the first set to affix thumb impressions on the will KUMAR VIRENDER 2015.03.19 17:41 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2790 of 1987 10 which are said to tally with the admitted thumb impressions and the second set to affix thumb impressions on the endorsement before the Sub Registrar which are said not to tally. The trial court doubted the deposition of the scribe on the ground that he was not personally known to the testator, a ground, that could hardly be said to be sufficient to doubt the deposition of the scribe. A professional scribe, is not expected to personally know each and every person who approaches him to scribe a document.
The findings recorded by the first appellate court, being clear and cogent, based upon a considered appraisal of the pleadings and evidence, and do not suffer from any misreading or error in appraising evidence as to warrant interference.
The question that, however, remains and always arises for adjudication, even where execution of a will, has been proved, is whether propounders of the will, in this case, the respondents, have been able to dispel suspicious circumstances surrounding its execution. The trial court discarded the will by holding that it is surrounded by various suspicious circumstances whereas the first appellate court has, after a detailed reference to the pleadings, the evidence and the alleged suspicious circumstances, held that the so called suspicious circumstances, pointed out by the trial court, are neither suspicious nor sufficient to raise an inference that will was executed by perpetuating a fraud or by prevailing upon a free will of the testator.
The first appellate court held that failure to refer to the will in the suit that led to the consent decree, is irrelevant. The KUMAR VIRENDER 2015.03.19 17:41 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2790 of 1987 11 finding, cannot be faulted as there was no reason for Kundan Singh to disclose, that he had executed a will and as regards exclusion of sisters and other heirs, the first appellate court dealt with this point, by holding as follows:-
".......Both the sisters of Kundan Singh were admittedly married long before his death and brother Santokh Singh was living separate from him. In the circumstances, there was nothing unnatural for him to exclude his married sisters and the separate brother from inheriting his property. Besides, it also needs to be appreciated that he was fair in distributing his property amongst the children of his three deceased brothers Bir Singh, Saudagar Singh and Anokh Singh. 1/3rd was given to the children of each of the three brothers."
The finding cannot be faulted whether in fact or in law as there is nothing unnatural in the will. The first appellate court also noticed that the testator survived for 10 long years after execution of the disputed will and in case the will had been wrongly executed and registered, could have revoked it at any time.
The impugned findings are, in no manner, perverse, arbitrary or contrary to the pleadings or evidence on record. The first appellate court has, by assigning clear and cogent reasons, preceded by a perceptible process of reasoning held that the will does not suffer from suspicious circumstance pointed out by the trial court and as the will has been proved, in accordance with law, rightly accepted the appeal, set aside judgment and decree passed by the KUMAR VIRENDER 2015.03.19 17:41 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2790 of 1987 12 trial court and dismissed the suit. The impugned judgment does not suffer from any error of law so as to give rise to any substantial question of law, much less the question of law framed by the counsel for the appellants. The appeal is, therefore, dismissed, but with no orders as to costs.
( RAJIVE BHALLA ) 05.11.2014 JUDGE VK KUMAR VIRENDER 2015.03.19 17:41 I attest to the accuracy and authenticity of this docunt High Court Chandigarh