Punjab-Haryana High Court
Lal Singh vs Nand Kaur And Ors. on 25 November, 1991
Equivalent citations: (1993)105PLR183
JUDGMENT G.R. Majithia, J.
1. The unsuccessful defendant has come up in regular second appeal against the judgment and decree of the first appellate Court partly allowing the appeal filed by plaintiff-respondents No. 1 to 3 and decreeing their suit for possession of 3/4th share of the suit land other than the land comprised in Khasra Nos. 62/5/2(2-8), 7/2(3-8),8(8-0), 13(8-0), 14/1(4-2), 14/2(3-8), 15(7-12), 17(8-0), 18/1(3-8), 18/2(4-0) and 19/1(7-7).
2. The facts:-
Nand Kaur, Chand Kaur, Daan Kaur and Smt. Harnam Kaur are daughters of Smt. Mahan Kaur; that Nand Kaur, Chand Kaur and Daan Kaur, plaintiff-respondents No. 1 to 3 (hereinafter the plaintiffs) filed a suit for possession of the suit land on the ground that the same was owned by Smt. Mahan Kaur, widow of Zora Singh, who died on September 18, 1969, leaving behind four daughters; that Smt. Harnam Kaur was arrayed as defendant No. 6 to the suit as, according to the plaintiffs, she was given her share in the property situated in village Jai Singh Wala by the deceased during her life time and she had, thus, no right to claim succession to the property left by Smt. Mahan Kaur.
3. The suit was resisted by Lal Singh, defendant No. 1/appellant (hereinafter the contesting defendant) claiming inheritance of the deceased on the basis of a registered will dated September 13, 1969. Alternatively, he also urged that the suit land was the subject-matter of possessory mortgage with him, Ujjagar Singh, defendant No. 2 and Magher Singh (not impleaded as a party to the suit) for more than sixty years; that the mortgagees have become absolute owners of the land under mortgage with them.
4. Ujjagar Singh, defendant-respondent No. 4, in the written statement pleaded that the deceased had executed a power of attorney in his favour; that he used to manage the suit land and acting as an attorney of the deceased, he had transferred land measuring 52 Kanals 18 Marlas out of the suit land in favour of Basakha Singh, defendant- respondent No. 5 vide registered sale deed dated July 9, 1969; that acting as general attorney of Smt. Mahan Kaur, he sold land measuring 73 Kanals 19 Marlas to Bakhtaur Singh and Amarjit Kaur, defendant- respondents No. 6 and 7, respectively (son-in-law and daughter-in-law of the general attorney) vide registered sale deed dated September 24, 1969, for a sum of Rs. 10,000/-. He further claimed that Smt. Mahan Kaur had bequeathed the suit property in his favour by a registered will dated February 16, 1969.
5. Vendee-defendants No. 3 to 5, in their separate written statements pleaded that they had purchased land measuring 52 Kanals 18 Marlas from Smt. Mahan Kaur through her general attorney, Ujjagar Singh, vide registered sale deed dated July 9, 1969 for Rs. 4000/- and land measuring 73 Kanals 19 Marlas had been sold by her through her general attorney Ujjagar Singh in favour of Bakhtaur Singh and Amarjit Kaur by a registered sale deed dated September 24, 1969, for Rs. 10,000/- and that the suit with regard to these lands was incompetent Smt. Mahan Kaur being not the owner thereof at the time of her death.
6. Smt. Harnam Kaur, defendant No. 6, the fourth daughter of deceased Mahan Kaur, did not contest the suit and she was proceeded ex-parte.
7. The pleadings of the parties gave rise to the following issues:-
1) Whether the plaintiffs have no locus standi to file the suit? OPD
2) Whether Mahan Kaur had executed a valid will for the property in dispute in favour of Lal Singh? OP Lal Singh.
3) Whether Mahan Kaur had executed a valid will for the property in dispute in favour of Ujjagar Singh defendant? Onus on Ujjagar Singh.
4) If issues Nos. 2 and 3 are proved, which is the last will of Mahan Kaur? OPD
5) Whether defendants No. 3 and 5 are bona fide purchasers of the land in dispute for consideration from Mahan Kaur? OPD.
6) Relief.
On July 12, 1971, the following additional issues were framed:-
5A) Whether the land in dispute is under mortgage with Lai Singh, Jaggar Singh defendants and Maghar Singh, if so, its effect? OPD 5B) Whether Magher Singh son of Nidhan Singh is a necessary party? OPD.
Again on April 17, 1973, the following additional issues was framed:-
5C) Whether the suit is not maintainable in its present form? OPD No. 1.
The trial Judge decided issues No. 1, 3, 5, 5A and 5B in favour of the plaintiffs; Under issue No. 2, it was held that the will dated September 13, 1969, Ex.D.l, executed by Mahan Kaur in favour of the contesting defendant was valid; under issue No. 3, it was held that the will set up by Ujjagar Singh, defendant-respondent No. 4, was not proved for lack of evidence issue No. 4 was decided in favour of the contesting defendant in view of the finding under issue No. 2; issue No. 5 was decided against the defendants and it was held that the sale effected vide sale deed dated September 24, 1969 in favour of defendants No. 4 and 5 was after the death of Smt. Mahan Kaur, who died on September 16, 1969 and was thus invalid and the second sale purported to have been effected on July 9, 1969 in favour of Basakha Singh, defendant No. 3, was invalid as there was no evidence that Ujjagar Singh, defendant-respondent No. 4, who had executed the sale deed as general attorney of Smt. Mahan Kaur was, in fact, her general attorney in point of time; issues No. 5A and 5B were decided against the defendants and it was held that even though the suit land was in possession of the defendants as mortgagees, still the plantiffs were entitled to declaration of ownership of the land. Issue No. 5C was left undecided by the trial Judge and on ultimate analysis, the trial Judge, on the basis of his findings under issue No. 2, dismissed the suit.
8. The unsuccessful plaintiffs assailed the judgment and decree of the trial Judge in first appeal and the first appellate Court held that sufficient opportunity was not afforded to defendants No. 3 to 5 to lead evidence on issue No. 5 and other issues affecting their interests. It also found that issue No. 5C was left undecided by the trial Judge and this resulted in mistrial. The judgment and decree of the trial Judge was set aside and the suit was remanded for deciding the case afresh after giving opportunity to defendants No. 3 to 5 to lead their respective evidence. The other defendants and the plaintiffs were also to be afforded opportunity to produce their evidence in rebuttal.
9. The order of the first appellate Court was challenged in regular second appeal preferred by Ujjagar Singh, defendant No. 2. The appeal was accepted by order dated August 7, 1975 by this Court and it was directed that the appeal will be restored at its original number and the First Appellate Court, instead of remanding the case to the trial Court, would ask for a report under Order 41, Rule 25, Civil Procedure Code, on issues No. 5 and 5-C from the trial Court. In the wake of the order passed by the High Court, the First Appellate Court asked for a report from the trial Judge on issues No. 5 and 5-C. Vide order dated December 3, 1975, Senior Subordinate Judge, Bhatinda, remitted these issues to the Subordinate Judge who had, in the meantime, succeeded Shri Bachan Singh, who had rendered the judgment and decree earlier, to send his report. Shri D.K. Monga, Subordinate Judge sent his report dated September 27, 1978. He answered issue No. 5 against the defendants holding that defendants No. 3 to 5 were not the bona fide purchasers for consideration and found issue No. 5-C in favour of the plaintiffs holding that the suit was properly framed.
10. Before the First Appellate Court, the findings of the trial Judge under issues No. 1, 3, 4, 5-B and 5-C were not assailed. The controversy centred round issues No. 2, 5 and 5-A. The First Appellate Court held that sale deed dated July 9, 1969, copy Ex.PW9/A, purporting to have been executed by Ujjagar Singh, defendant No. 2, as general attorney of Smt. Mahan Kaur, deceased, regarding land measuring 52 Kanals 18 Marlas in favour of Basakha Singh, defendant No. 3, for a consideration of Rs. 4000/- was a sham or colourable transaction. The other sale deed dated September 24, 1969, copy Ex.DW10/A, regarding land measuring 73 Kanals 18 Marlas in favour of Smt. Amarjit Kaur and her husband-Bakhtaur Singh, defendants No. 5 and 4, respectively, for a consideration of Rs. 10,000/- was executed after the death of Smt. Mahan Kaur. The original sale deed was not produced, but its certified copy was produced. It was executed on September 16, 1969 and registered on September 17, 1969. Smt. Mahan Kaur died on September 16, 1969 and this would ex facie show that sale was not effected when Smt. Mahan Kaur was still alive. No evidence was led to show at what point of time Smt. Mahan Kaur died and at what time the sale deed was executed in favour of defendants No. 5 and 4. The first appellate Court, after examining the evidence, held that the sale covered by sale deed, Ex.DW10/A, was not effected during the life time of Smt. Mahan Kaur and was, thus, invalid. It further held that the sales covered by sale deed, Ex.DW9/A and Ex.DW10/A, were invalid. The conclusions arrived at by the first appellate Court that the sales effected vide sale deeds Ex.DW9/A and DW10/A were invalid were not challenged by the vendees, namely, defendants 3 to 5 and Ujjagar Singh, defendant No. 2, the alleged General Attorney of Smt. Mahan Kaur.
11. The vendees and the alleged General Attorney of Smt. Mahan Kaur deceased have not assailed the judgment and decree of the first appellate Court in second appeal.
12. The deceased owned land measuring 233 Kanals 4 Marlas situate in the revenue limits of village Chak Fateh Singh Wala, Tehsil and District Bhatinda. The will dated September 13, 1969, Ex.D.1, is alleged to have been executed by Smt. Mahan Kaur on the same date and she died on September 16, 1969. The will is allegedly attested by Karnail Singh, Sarpanch and Jit Singh, Lambardar of village Jai Singh Wala and neither of them was called upon to prove the execution of the will. The contesting defendant examined D.W. 1 Sukhdev Singh, his close relation and scribe of the will; D.W. 2 Mohinder Singh, Naib Tehsildar; D.W. 3 Harnam Kaur and D.W. 4 Dr. Gore Lal. The first appellate Court opined that none of them claimed to have known the testatrix; that the contesting defendant took Dr. Gore Lal (DW4) from Bhatinda to village Chak Fateh Singh Wala, to which place the beneficiary belonged, to append a certificate on the will that the testatrix was of sound disposing mind. The conduct of this witness was deprecated by the first appellate Court on the ground that he had tried to suppress material facts from the Court. The doctor did not know the person who had taken him to the village, while the beneficiary, the contesting defendant, stated on oath that he had known the doctor since he had been taking medicine from him off and on. The Registration of Wills was held to be wholy perfunctory. The Naib Tehsildar, who acted as a Sub Registrar, accompanied the beneficiary along with the doctor at the asking of the contesting defendant. The contesting defendant did not make any application to the Tehsildar or to the Sub Registrar for accompanying him to the village to attest the will. The contesting defendant even did not pay the requisite fee to the Sub Registrar as admissible under the Rules. The first appellate Court opined that the Naib Tehsildar, who acted as a Sub Registrar, registered the alleged will in a routine manner without application of mind. The finding recorded by the first appellate Court that the will is invalid is essentially a finding of fact.
13. Even otherwise, I have gone through the evidence and am not persuaded to take a different opinion than the one taken by the first appellate Court. The beneficiary under the will is not related to the deceased in any manner. He came to light only three days before her death and with ingenuinity propounded the will. It appears that in connivance with Smt. Harnam Kaur, the 4th daughter of the deceased, he engineered this will in order to deprive the plaintiffs, who are daughters of the deceased, from inheritance. The manner in which the will purports to have been executed is surrounded by suspicious circumstances. The attesting witnesses of the will were not examined. Presumably they were not supporting the execution of the will. The Sub Registrar and the doctor were examined to prove the execution of the alleged will, which is far from satisfactory and no reliance can be placed upon their testimony.
14. Dr. Gore Lal (DW4) was a convenient witness and, as found by the first appellate Court, he appended the certificate regarding the sound state of mind of the testrarix for consideration. The evidence of the scribe of the alleged will, namely, Sukhdev Singh (DW1), is unsatisfactory and not worthy of reliance. At any rate, he cannot be called an attesting witness. He did not say that he knew the testatrix.
15. I have no doubt left in my mind that the will, Ex.D.l, is the result of manoeuvrability. The signature of Smt. Harnam Kaur, defendant No. 6, on the will was obtained only for the purpose of giving colour of genuineness to the will; she was acting against the interests of her own sisters for some motive. She was not an attesting witness. Due execution of the will remained un-proved and I am not left with any doubt in my mind that it is the result of deep-rooted conspiracy between the contesting defendant and Smt. Harnam Kaur. The testatrix was a widow and had no independent advice. Ujjagar Singh, defendant No. 2, and Lal Singh, the contesting defendant, are real brothers; they conspired together to deprive the widow of her property. The Contesting defendant set up a will in his favour while Ujjagar Singh claimed that he was the general attorney of Smt. Mahan Kaur and, purporting to act on the basis of the General Power of Attorney, executed sale deeds in favour of his son, daughter-in-law, daughter and son-in-law, which sales have been found to be invalid by the first appellate Court and that part of the judgment has not been assailed by Ujjagar Singh by filing a second appeal in this Court. The contesting defendant is a co-conspirator with Ujjagar Singh and he has set up the alleged will for achieving what his real brother Ujjagar Singh failed. Ujjagar Singh and the contesting defendant are brothers and they both devised a scheme to deprive the legitimate heirs of the estate of their mother. At one stage, I thought of issuing directions to register a case on criminal side against the contesting defendant/appellant and Ujjagar Singh, defendant-respondent No. 4, but subsequently I thought of leaving the matter as it is.
16. For the reasons stated above, the appeal fails and is dismissed with costs. Counsel's fee is assessed at Rs. 5,000/- (Rupees five thousand).
17. Civil Misc. No. 1076-C of 1979 was moved for producing additional evidence. No ground has been set up b the application for not producing the documents before the trial Judge or before the first appellate Court. The application is without any merit and deserves dismissal.
18. Civil Misc. No. 556-C of 1979 was moved for staying the execution of the decree under challenge. It appears to have not been pressed. At any rate, it has been rendered infructuous now in view of my judgment in the main appeal. The application is dismissed.