Punjab-Haryana High Court
Kartar Singh (Dead) Through Lrs. vs Jaswant Singh (Dead) Through Lrs. on 28 April, 2004
Equivalent citations: (2005)141PLR78
JUDGMENT M.M. Kumar, J.
1. This is defendant's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') against the judgment of reversal dated 18.1.1982 passed by the District Judge, Gurdaspur. The judgment and decree dated 7.6.1980 passed by Sub-Judge, Ist Class, Batala was reversed and the suit of the plaintiff-respondent Jaswant Singh was decreed.
2. Brief facts of the case necessary for deciding the controversy raised in this appeal are that one Pala Singh died on 14/15.9.1965. He was survived by his widow Kartar Kaur defendant-respondent 9, one son Atma Singh defendant-respondent 10 and five daughters defendant-respondents 11 to 15, namely, Balkar Kaur, Piar Kaur, Amar Kaur, Balbir Kaur and Mohinder Kaur. Plaintiff-respondent 1 Jaswant Singh (now represented by his legal representatives) is the husband of Balkar Kaur daughter of Pala Singh whose estate is the subject-matter of litigation in the instant appeal. It is further pertinent to point out that Kartar Singh defendant-appellant is the husband of Smt. Amar Kaur who is defendant-respondent 13 in the instant appeal. The whole controversy in this case relates to the will dated 9.9.1965 Ex.P-1 set up by plaintiff-respondent 1 and the Will dated 5.8.1963 Ex.D-1. The controversy was set to motion by filing Civil Suit No. 199 dated 14.9.1977 by plaintiff-respondent 1 for possession of land measuring 80 Kanals 12 Marlas situated in Village Machhrala, Tehsil Batala. The claim was founded on registered will dated 9.9.1965 and the date of death of Pala Singh also became controversial as it was alleged by plaintiff-respondent 1 that he had died on 15.9.1965 and the defendant-appellant took the stand that the date of death is 7.9.1965. The defendant-appellant placed reliance on a registered will dated 5.8.1963 alleged to have been executed in their favour. The issue with regard to period of limitation was also raised along with another question as to whether the judgment and decree passed in Civil Suit No. 143 of 1974 filed by Amar Kaur, Balbir Kaur and Mohinder Kaur defendant-respondents 13 to 15 was binding on the defendant-appellant who had appeared as general power of attorney of defendant-respondents 13 to 15.
3. On the issue of will Ex.P1 dated 9.9.1965, the learned District Judge observed that it was a natural tantamount of the testator Pala Singh and the Civil Judge had erroneously discarded. After discussing the evidence in detail, the learned District Judge in paragraph 23 of the judgment concluded as under:-
"To recapitulate the salient features of Ex.P.1, it may be stated there that will Ex.P-1 was executed by the testator as father-in-law in the name of his son-in-law who had been living with him and rendering service. The Will was duly registered. It was shown the light of the day at the earliest as on its basis plaintiff got the inheritance of Pala Singh mutated in his name. The natural heirs especially the widow and the son have concurred in this will. Neither of them has put forth any grouse to say that the testator was not in possession of his full senses when he executed Will Ex.P-1. The lower Court's finding on issue No. 1 is therefore, set aside and reversed. Will Ex.P-1 is held to be a genuine document executed by Pala Singh whereby he bequeathed "his entire property in favour of plaintiff Jaswant Singh."
4. In so far as the Will dated 5.8.1963 Ex. D-1 propounded by the defendant-appellant was concerned, the learned District Judge found that the document was surrounded by numerous suspicious circumstances. The first suspicious circumstance found by the learned District Judge is that Pala Singh had never lived at Village Kharal. The attesting witnesses belong to village Kharal. The testator had been residing at Village Khairabad where he died. The attesting witness of the Will Ex.D-1 could not be considered as a co-villager of the testator and the defendant-appellant who set up the will hails from Village Kharal. The whole property of Pala Singh is stated to be situated at Village Kharal and the defendant-appellant is intended to be nominated and constituted to be the sole heir of Pala Singh to the exclusion of other heirs. It is factually incorrect. Pala Singh owned property at other pieces. No reference has been made to the property left by Pala Singh situated at Village Jallowal. Pala Singh has appointed and constituted the defendant-appellant as his general attorney. However, the defendant-appellant abused his authority and made certain transfers of land belonging to Pala Singh which led to the revocation of his general power of attorney vide revocation deed dated 1.2.1965 registered on 2.2.1965. It is recited in the deed that Pala Singh is left with no faith in defendant-appellant Kartar Singh as he had been squandering away his property. On account of the conduct of defendant-appellant, there was no reason for Pala Singh to continue or execute the will dated 5.8.1963 Ex.D-1 alleged to be executed in favour of the defendant-appellant. It is further clear that the will Ex.D-1 was suppressed by the defendant-appellant when he was pursuing the civil suit in the Courts at Hoshiarpur and the plaintiff- respondent 1 who was defending that suit had set up the will Ex.P-1 dated 9.9.1965. It was obligatory on the part of defendant-appellant 2 to make a reference to the will Ex.D-1 when he filed replication. The scribe of the will was neither known to the testator nor to the attesting witness. On the basis of aforementioned suspicious circumstances the will Ex.D-1 has been found to be a fictitious document.
5. Apart from the aforementioned suspicious circumstances, the execution of the will has also been doubted. The statement of Pishora Singh DW-2 has not been accepted as he is a collateral of legatee Kartar Singh defendant-appellant. Both of them were residents of the same village in Pakistan and after partition and exodus in 1947 they got their lands allotted in one village. This witness did not show any knowledge with regard to testator Pala Singh and his family affairs. He was not even able to disclose whether Pala Singh was dead or alive. It was then pointed out that registration by itself is no proof of the genuineness of the will.
6. On issue No. 2 it has been found that Pala Singh has died on the intervening night of 14/15.9.1965. On the basis of aforementioned date, the suit of the plaintiff-respondent 1 has been found to be instituted within the time. The date of death if presumed to be 7.9.1965, then also the suit has been found to be within the stipulated period prescribed by Article 65 of the Limitation Act, 1963.
7. Mr. H.S. Giani, learned counsel for the defendant-appellant has argued that the findings with regard to date of death are erroneous as the statement made by Dr. Basant Ram PW-4 and the medical certificate do not inspire confidence. According to the learned counsel, the register was kept by Dr. Basant Ram for issuing certificate to those who used to be advised rest by him. The certificate issued in respect of Pala Singh is on the back of printed page 59 which is to the effect that he remained under his treatment from 10.9.1965 to 14.9.1965 when he died, whereas the other certificates in the register are carbon copies as against the original copy of the certificate issued in respect of Pala Singh. According to the learned counsel, the certificate was not required by any person because otherwise carbon copy would have been kept. Therefore, issuance of such a certificate is very unusual. He has further submitted that there is evidence on record in the form of postcard Ex.D-2 and mark XX which would show that Pala Singh had died on 7.9.1965. If the postcard is taken into consideration, it would prove that once Pala Singh had died on 7.9.1965, there was no question of registration of will by him on 9.9.1965. He has then attacked the authenticity of the certificate of death Ex.P-2 issued by the Additional Registrar (Births and Deaths), Hoshiarpur showing the date of death of Pala Singh to be 15.9.1965. He has argued that there are apparent contradiction in the certificate issued by Dr. Basant Kumar PW-4 wherein the date of death is recorded to be 14.9.1965 and whereas Ex.P-2 has recorded the date of death as 15.9.1965.
8. The learned counsel has then asserted that the will dated 9.9.1965 has failed to make any reference to the will Ex.D-1 dated 5.8.1963 and, therefore, Ex.P-1 could not have been relied upon in absence of any clear mention of the earlier registered will Ex.D-1 dated 5.8.1963. He has also submitted that the property remained mutated from 1965-67 in favour of the defendant-appellant but the will has been set up after 12 years. The learned counsel has maintained that the mutation has never been challenged. Referring to the statement of Handwriting Expert and his report Ex.DW-4/1, the learned counsel has argued that the standard signatures of Pala Singh did not tally with the signatures on the Will dated 9.9.1965 and the Hand-writing Expert has opined that the variation falls in a class of attempted forgery. He has drawn my attention to the report Ex.DW4/l and specifically concluding paragraph of the same. The learned counsel has then submitted that the will Ex.D-12 dated 5.8.1963 has been found to be validly executed in favour of the defendant-appellant by the trial Court as is evident from paragraphs 15 to 18 of the judgment. The reason for non-disclosure of the will Ex.D-1 dated 5.8.1963 in the earlier civil suit is that the property in village Machhrala was not relevant and, therefore, the reasons given by the lower Appellate Court regarding suppression of Ex.D-1 in the earlier civil suit is absolutely erroneous. The learned counsel has urged that the same would not constitute any suspicious circumstance.
9. Mr. G.S. Punia, learned counsel for the plaintiff-respondents has argued that defendant-respondents 13 to 15 namely, Amar Kaur, Balbir Kaur and Mohinder Kaur had earlier filed Civil Suit No. 143 of 1974 for possession of 3/7th share of the land and a house situated at Village Jallowal, Tehsil and District Hoshiarpur in the Court of Sub-Judge, 1st Class, Hoshiarpur. In that suit defendant-appellant Kartar Singh has appeared as general power of attorney on behalf of defendant-respondents 13 to 15 i.e. Amar Kaur, Balbir Kaur and Mohinder Kaur daughters of Pala Singh. The suit was dismissed on 25.8.1975 vide Ex.P-3. The Will Ex.D-1 was set up in that case by defendant-respondents 13 to 15 and the evidence in the aforementioned suit has been the same which was produced in the suit from which the instant appeal has arisen. It has been urged that the plaintiff-respondents in that case have propounded the will Ex.P-1 dated 9.9.1965. On the basis of evidence, it was held that the will registered on 9.9.1965 was proved beyond any reasonable doubt and the evidence of the postcard Ex.D-2 and Mark XX was considered as doubtful as they were possibly fabricated postcards. The learned counsel has also, pointed out that the appeal field by defendant-respondents 13 to 15 was dismissed on 125.9.1978 (Ex.P-4) and even the second appeal (Ex.P-5) was dismissed on 8.1.1979. The learned counsel has maintained that the will executed by Pala Singh Ex.D-1 on 5.8.1963 has been found to be a forged document, whereas the will set up by the plaintiff-respondent was found to be a genuine will. The learned counsel has argued that although the principle of res judicata would not be ipso facto applicable to the defendant-appellant as he was not a party to the earlier litigation initiated by filing the suit by Amar Kaur, Balbir Kaur and Mohinder Kaur defendant-respondents 13 to 15. But once there is a judicial precedent upholding the will, it has to be considered as relevant, as such. In support of his submission, the learned counsel has placed reliance on paragraph 24 of the judgment of the Supreme Court in Sahu Madho Das and Ors. v. Mukand Ram and Anr., A.I.R. 1955 S.C. 481 and paragraph 9 of the judgment of the Supreme Court in the case of Virupakshayya Shankarayya v. Neelakanta Shivacharya Patadadevaru, A.I.R. 1955 S.C. 2187.
10. Mr. Punia has also argued that the will set up by the plaintiff-respondents in the earlier suit is in respect of the whole property and it is no explanation for the defendant-appellant to tender that in the earlier suit property situated at Village Jallowal alone was the subject matter of that suit. Therefore, it cannot be argued that it was proper to suppress the will Ex.D-1. He has further pointed out that Pala Singh deceased testator was residing with the plaintiff-respondents and the defendant-appellant did not even attend his last rites. According to the learned counsel in the earlier will the testator is alleged to have stated that he was living at Village Machhrala, whereas he never lived at that village. The learned counsel has placed reliance on paragraph 16 to 19 of the judgment of lower Appellate Court to show various suspicious circumstances. He has also invited my attention to paragraph 24 of the judgment where the finding has been recorded that Ex.D-1 is a forged document.
11. Mr. Punia has also supported the view of learned District Judge by asserting that the suit filed by the plaintiff-respondent has to be considered within time whether the date of death of Pala Singh is taken to be 7.9.1965 or 14/15.9.1965. According to the learned counsel Article 65 of the Limitation Act, 1963 prescribes a period of 12 years of limitation for filing the suit and the time is to start running when the possession of the defendant becomes adverse to the plaintiff. There being no plea of adverse possession, the period of limitation did not start running.
12. Learned counsel has also argued that the science of handwriting is not an exact science and no conclusive reliance could be placed on the opinion expressed by the expert. In support of his submission, the learned counsel has placed reliance on two judgments of this Court in the cases of Piara Singh v. Jagtar Singh and Anr., A.I.R. 1987 Punjab and Haryana 93 and Mohan Sarup Singh (Deceased) v. Rajeshwar Sarup and Ors., (1997-1)115 P.L.R. 336. He has then pointed out that presence of the legatee by itself is no ground to view the will with a suspicion. In support of his submission, the learned counsel has placed reliance on paragraph 3 of the judgment of the Supreme Court in Smt. Malkani v. Jamadar and Ors., A.I.R. 1987 S.C. 76; State of Gujarat v. Vinaya Chandra Chhota Lal Pathi, A.I.R. 1967 S.C. 778 and another judgment of this Court in the case of Tirath Singh and Ors. v. Sajjan Singh (Died) through his L.Rs. and Ors., (1997-3)117 P.L.R. 643.
13. The learned counsel has also emphasised that mere fact that the will is registered would go a long way to suggest that it has been validly executed and discrepancies in the evidence of the witnesses or the legatee could not be sufficient to declare the will as suspicious. The learned counsel has placed reliance on judgment of the Supreme Court in PPK Gopalan Naambiar v. PPK Balakrishnan Nambiar and Ors., and a judgment of this Court in the case of Joginder Singh and Ors. v. Surinder Singh (Deceased) and Ors., (1997-1)115 P.L.R. 83. The learned counsel has also submitted that defendant-appellant Kartar Singh had died on 17.7.1984 and no application for bringing on record his legal representatives was promptly field. However, on 12.1.2002 an application was filed for bringing on record the legal representatives of defendant-appellant Kartar Singh by filing C.M. No. 375-C of 2002 which has been duly replied by filing C.M. 749-C of 2002. According to the learned counsel, the amendment made by this court in Order XXII Rule 3(2) of the Code would not come to his rescue and the appeal would abate on the expiry of period of 90 days from the date of death of defendant-appellant Kartar Singh and at the most after a further period of 60 days thereafter, if an application for setting aside the abatement has been made. In support of his submission, the learned counsel has placed reliance only judgment of this Court in the case of Jawala Singh (deceased) and Ors. v. Harnam Singh and Ors., 1993 P.L.J. 83.
14. Having heard the arguments and perused the records, 1 am of the considered view that this appeal is liable to be dismissed. There are insurmountable difficulties for the defendant-appellant to succeed. A large number of suspicious circumstances have been pointed out by the learned District Judge in respect of the Will set up by the defendant- appellant Ex.D-1 dated 5.8.1963 which is prior in time to the Will Ex.P-1 dated 9.9.1965. The opportunity to set up the Will Ex.D-1 had arisen when defendant-respondents 13 to 15 namely Amar Kaur, Balbir Kaur and Mohinder Kaur had filed civil suit No. 143 of 1974 on 13.1.1974. In that suit, the defendant-appellant had acted as general power of attorney of defendant-respondents 13 to 15. The suit was dismissed on 25.8.1975 and the will dated 9.9.1965 set up by the plaintiff-respondent 1 Ex.P-1 was found to be genuine. The other circumstances pointed out by the learned District Judge is that Pala Singh had never lived at village Kharal. He had always resided, lived and even died at village Khairabad. The attesting witness of the will belonged to village Kharal and the recital of Ex.D-1 is incorrect when it stated that the attesting witness belonged to village Kharal, who was a co-villager. The will had further recited another fact which is factually wrong that Pala Singh had his whole property in village Kharal, whereas Pala Singh owned property situated in village Khairabad. Moreover, defendant-appellant had at one time appointed Pala Singh as his general power of attorney but the same was revoked by revocation deed dated 1.2.1965 registered on 2.2.1965. It recites that Pala Singh had lost faith in the defendant-appellant as he had been squandering away the property of the testator. This fact would show that Pala Singh would not have continued the operation of the will dated 5.8.1963 Ex.D-1 if there was any such will in existence. However, on account of the fact that the will did not see the light of the day at a crucial opportunity available when defendant-respondents 13 to 15 filed the suit would indicate that the will infact was not even in existence at that time. The execution of the will has also been doubted as the attesting witness Pishora Singh DW-2 has not been accepted as an independent witness. Pishora Singh DW-2 has been found to be under the influence of the defendant-appellant and he was not aware as to whether Pala Singh was dead or alive.
15. On the contrary, the will Ex.P-1 dated 9.9.1965 has been found to be a genuine document incorporating the wish of the testator Pala Singh. This will was also duly registered and it had seen the light of the day at the earliest opportunity available because the plaintiff-respondent got the inheritance of mutation effected in his name after the death of Pala Singh. The widow of Pala Singh and his son have also concurred with this will. Moreover, this will has already been found to be a genuine document in civil suit 143 of 1974 which was filed by defendant- respondents 13 to 15. The defendant-appellant was not party to civil suit No. 143 of 1974 but had appeared as power of attorney on behalf of defendant-respondents 13 to 15. The principle of res judicata may not be applicable but the earlier judgment is a precedent for interpretation of the will Ex.P-1 dated 9.9.1965 and on that basis it is a relevant piece of evidence. The Supreme court in the case of Sahu Madho Das and Ors. v. Mukand Ram and Anr., A.I.R. 1955 S.C. 481, had the opportunity to deal with the aforementioned proposition and held as under:-
"(24) Now to go back to the year 1864 when Mst Pato made the so-called will of 1864. This document was construed by the Privy Council in Mst. Hardei v. Bhagwan Singh, A.I.R. 1919 PC 27(A) and their Lordships said-
"In the events which happened this document did not become operative, but it is relevant as showing that at the date of its execution Pato was claiming an absolute right to dispose of the whole of the scheduled property.
Mukand Ram was not a party to that litigation and the decision does not bind him but it operates as a judicial precedent about the construction of that document, a precedent with which we respectfully agreed. She says there that the property "belongs exclusively to me without the participation of anyone else". That assertion, coupled with the fact that she purported to dispose of the property after her death (which she could not have done as a limited owner), and taken in conjunction with the subsequent conduct of the daughters and that of the grandsons, imports admissions by them that was her claim and leaves us in little doubt about what she meant. We, therefore, reach the same conclusions the judicial committee and hold that Mst. Pato claimed an absolute estate in 1864."
The aforementioned observation of the Supreme court would show that if the same document is required to be considered by the Court in a subsequent proceeding on which already judicial opinion is available then the judicial opinion shall be relevant fact on the principle of judicial precedent. In the case of Virupakshayya Shankarayya (supra), a decision of the Privy Council was considered relevant with regard to nomination and installation as Mathadhipati. The Supreme Court reversed the judgment of the Karnataka High Court which had taken a contrary view. Their Lordships of the Supreme Court observed as under:-
"9. In the aforesaid premises, the judgment of the Privy Council, even though the same did not bind the plaintiff on the principle of res judicata, was definitely a relevant circumstance to be taken note of, because of what has been stated in Section 42 of the Evidence Act. What we, however, find is that the High Court had only referred to the earlier, decision without examining the question as to whether law permitted a contrary view to be taken on the self-same issue. Accordingly to us, the issue having been finally determined at the highest level, the same could not have been re-examined, which exercise to start with, was undertaken even by a Civil Judge."
16. I am of the considered view that the application being C.M. No. 375-C of 2002 filed under Order XXII Rule 3 on 12.1.2002, is highly belated because the defendant-appellant Kartar Singh had died on 17.7.1984 and he was survived by his widow, 5 sons and 3 daughters. Thereafter, another application, namely, C.M. No. 749-C of 2002 was filed on 16.1.2002, seeking condonation of 17 years, 6 months and 27 days delay for impleading the legal representatives. According to a judgment of this Court in the case of Jawala Singh (Supra), the appeal stood abated on the expiry of a period of 90 days as provided by the Order XXII Rule 3(2). It is pertinent to mention that the plaintiff-respondent has also filed C.M. No. 900-C of 2002 under Order XXII Rule 3(2) read with Section 151 of the Code, for dismissing the appeal as having been abated. On notice of the application, the L.Rs. of the defendant-appellant Pritam Singh Ghuman had filed C.M. No. 375-C of 2002. In these circumstances, the question which arise for consideration is whether the amendment made by this Court in Order XXII Rule 3(2) of the Code would come to the rescue of the L.Rs. of defendant-appellant and would save the appeal from abating. The answer to this question is 'no' because this Court in Jawala Singh's case (supra) has held that the appeal stood abated, therefore, it must be held that the appeal stood abated. Respectfully, following the ratio of judgment in Jawala Singh's case (supra), I am of the considered view that amendment dated 21.9.1992 made by this Court in Order XXII Rule 3(2) would not save the appeal from being abated and, therefore, C.M. No. 900-C of 2002 deserve to be accepted and the applications filed by the L.Rs. of the defendant- applicant are liable to be rejected and the appeal is held to be abated.
17. I am further of the view that this Court in exercise of its jurisdiction under Section 100 of the Code would not reverse the findings of facts in the absence of a substantive question of law. The learned District Judge has recorded categorical findings that the will Ex.P. 1 dated 9.9.1965 is a genuine will and the same has been upheld in the earlier proceedings in Civil Suit No. 143 of 1974 filed on 13.1.1964 which was dismissed on 8.5.1974 by Sub-Judge 1st Class, Hoshiarpur. First appeal against the aforementioned judgment was dismissed by the learned Addl. District Judge on 15.9.1978 vide Ex.P-4. Even R.S.A. No. 220 of 1979 filed by the defendant-respondents 13 to 15 was dismissed by this Court on 1.8.1979. Moreover, the evidence adduced is almost identical in the earlier suit as well as in the suit from which the instant appeal has arisen. Therefore, under Section 100 of the Code this Court cannot undertake the task of re-appreciating evidence and record a different finding than the one recorded by the Courts below. The reasons adopted by the learned District Judge with regard to Ex.D-1 dated 5.8.1963 and Ex.P-1 dated 9.9.1965 are absolutely in order and no legal infirmity could be found in them. Therefore, I am not inclined to exercise jurisdiction under Section 100 of the Code.
18. The argument of the learned counsel for the defendant-appellant that the statement by Dr. Basant Ram PW-4 and the death certificate Ex.P-2 issued by the Addl. Registrar, Deaths, Ex.P-2 do not inspire confidence, would not require any detailed consideration. In his statement, Dr. Basant Ram PW-4 had stated that Pala Singh had died on 14.9.1965 whereas the death certificate recorded the death date as 15.9.1965. The finding of fact recorded by the Addl. District Judge is that Pala Singh had died in the night intervening 14/15.9.1965. Moreover, under Section 9 of the Births, Deaths and Marriages Registration Act, 1886 (for brevity 'the Act'), the evidence tendered in the form of certificate issued by the registrar is prima facie admissible and genuine.
19. It is appropriate to mention that the Act has been extended to Punjab by Punjab Act No. 5 of 1950, Section 9 of the Act reads as under:-
"9. Copies of entries to be admissible in evidence.- A copy of an entry given under the last foregoing section shall be certified by the Registrar General of Births, Deaths and Marriages, or by an officer authorised in this behalf by the State Government, and shall be admissible in evidence for the purpose of proving the birth, death or marriage to which the entry relates."
The use of word 'shall' in Section 9 of the Act would clearly show that the certificate issued by the officer authorised under the Act would be a prima facie evidence and it would raise a rebuttable presumption. However, the Court must accept such evidence as genuine and relevant. There are valid reasons for accepting such evidence as genuine because the intimation with regard to birth or death is always sent immediately and in any case long before the time there is any possibility of interpolations or motivations. The certificate issued by the Registrar of Births and Deaths is based on official record which would outweigh the other records. More than seventy years ago, a Division Bench of the Lahore High Court in Mohammad Hassan v. Safdar Mirza and Ors., A.I.R. 1933 Lahore 601, had laid down and approved the aforementioned principles. Therefore, there is presumption of truth and genuineness in favour of Ex.P-2 unless something to the contrary established.
20. A lot of emphasis was laid on the postcard Ex.D-2 mark 'XX' which discloses that an information was sent to the relatives with regard to the death of Pala Singh by stating that he had died on 9.6.1965 and, therefore, he could not have executed a registered will on 9.9.1965. The finding recorded by the learned District Judge shows that this postcard was possibly fabricated and planted in order to plead false evidence. This Court will not decide this question afresh as it is a pure question of fact. Another argument raised on behalf of the defendant-appellant was that the will Ex.P-1 dated 9.9.1965 did not make any reference to the earlier will Ex.D-1 dated 5.8.1963. The aforementioned submission of the learned counsel has no substance because the will Ex.D-1 dated 5.8.1963 was not disclosed in the proceedings initiated by defendant-respondents 13 to 15 when they filed civil suit No. 143 of 1974 which was dismissed on 20.5.1975. In that suit, the defendant-appellant had appeared as power of attorney of defendant-respondents 13 to 15. The existence of the will Ex.D-1 has become doubtful. Again this is a finding of fact coupled with the reason that in the earlier proceedings Ex.P-12 dated 9.9.1965 has been found to be an authenticated and genuine will executed by Pala Singh testator. Moreover, the defendant-appellant had lost the confidence of Pala Singh testator when he withdrew the general power of attorney by a registered revocation deed dated 11.2.1965, registered on 22.2.1965 reciting that the defendant- appellant had been squandering away his property. With regard to the argument raised that the statement made by the handwriting expert Mr. P.S. Ahuja with regard to variation in the signature of Pala Singh on the will Ex.P-1 dated 9.9.1965 is to such an extent that it borders on forgery, it may be observed that the learned District Judge has found the will Ex.P-1 as genuine. There is always a tendency on the part of the witnesses to depose on the lines suggested by the calling party. Reliance in this regard may be placed on two judgments of this Court in Mohan Sarup Singh's case (supra) and Piara Singh's case (supra) Therefore, the opinion expressed by the expert is not conclusive and the contention has to be rejected.
For the reasons recorded above, this appeal fails and the same is dismissed.