Punjab-Haryana High Court
Bishan Singh (Deceased) By His L.Rs. vs Saran Singh And Ors. on 5 October, 2005
Equivalent citations: (2006)144PLR667
Author: S.S. Saron
Bench: S.S. Saron
JUDGMENT S.S. Saron, J.
1. This appeal has been filed by Bishan Singh son of Bir Singh, defendant (appellant) against the judgment and decree dated 27.7.1996 passed by the learned Additional District Judge, Jagadhri whereby the appeal of Bishan Singh, defendant-appellant against the judgment and decree dated 22.11.1994 passed by the learned Sub Judge, 1st Class, Jagadhri has been dismissed. Bishan Singh, defendant-appellant died during the pendency of the appeal and his LRs. Smt. Inder Kaur (widow), Prithi Singh (son), Jagir Kaur, Balbir Kaur, Dalbir Kaur and Surinder Kaur (daughters) were impleaded as parties vide order dated 16.3.1998.
2. Saran Singh and Prem Singh sons of Gurdit Singh son of Bir Singh filed a suit for declaration to the effect that they are exclusive owners in possession of land measuring 6 Marias as detailed in the head note of the plaint. The suit was filed by them against Bishan Singh, Sadhu Singh and Kishan Singh sons of Bir Singh and Smt. Kreshni widow of late Kartar Singh son of Bir Singh and Ram Singh son of Gurdit Singh son of Bir Singh. The case of the plaintiffs is that their real uncle Fakir Singh, brother of their father Gurdit Singh was owner in exclusive possession of the land in dispute which he had purchased vide registered sale deed dated 1.5.1981 for a valuable consideration. Mutation No. 98 was sanctioned in his favour on 12.12.1981. It was his self-acquired property. Fakir Singh died issueless at Naraingarh on 11.7.1985. It was alleged by the plaintiffs Saran Singh and Prem Singh that they had served their uncle through out his life. All necessary help in old age was given to him and he being pleased with the services rendered by them, executed a Will dated 3.6.1985 with respect to the land at Bilaspur. The said Will was scribed by Fakir Chand, Deed Writer and was executed in the presence of the attesting witnesses Ram Saran, Lambardar of Bilaspur and Ghanshyam Dass of Lalhari Kalan. On the basis of the Will the revenue officers entered the mutation exclusively in their favour after holding an inquiry and going through all the formalities. However, on the objection raised by the defendants the mutation was declared as a contested one and was referred to the Assistant Collector, 1st Grade, Jagadhri. The latter vide his order dated 11.4.1986 sanctioned mutation in favour of the legal heirs of deceased Fakir Singh which led the plaintiffs to file the present suit. The defendants admitted the relationship between Fakir Singh and the plaintiffs but denied the execution of the Will in their favour. It was in fact stated that Fakir Singh had not been keeping well for the last many years and was not mentally fit and had lost his mental equilibrium and, therefore, was not in a fit condition to execute the Will. The plaintiffs in their replication reiterated the assertions as made in the plaint. The learned trial Court on the basis of pleadings of the parties framed the following issues:
1. Whether Fakir Singh deceased was the owner in possession of the suit land? If so, its effect?
2. Whether said Fakir Singh, executed a Will on 3.6.1985, if so, its effect? OPP
3. Whether the order of A.C. 1st Grade dated 11.4.1986 is illegal, null and void? OPD
4. Whether the suit is not maintainable? OPD
5. Whether the plaintiffs are estopped from filing the present suit by their own act and conduct?
6. Relief.
3. The question primarily for determination in the case is, whether the Will dated 3.6.1985 executed by Fakir Singh in favour of the plaintiffs is legal and valid. The learned trial Court after considering the evidence and material on record held the Will to have been validly executed. The learned Additional District Judge in appeal upheld the findings of the trial Court which are assailed by the L.Rs. of defendant No. 1-appellant in this appeal.
4. Learned Counsel for the appellants, contends that both the Courts below have wrongly ignored the evidence of N.K. Jain, Handwriting and Finger Print Expert who stated that the thumb impression on the Will is not of Fakir Singh and that Fakir Singh has put his right thumb impression whereas the case of the plaintiffs is that the Will bears the left thumb impression of Fakir Singh. Besides, no valid reasons have been given to exclude the defendant No. 1 whose L Rs are now the appellants from inheriting the property of Fakir Singh as he was a natural heir of Fakir Singh. Therefore, the Will is surrounded by suspicious circumstances. Besides, the Will is not a registered one even though it was executed in the Sub-Tehsil compound where Sub-Registrar was available for registering it. It is stated that the Will has not been attested by natural witnesses and that Ram Saran is Lambardar of village Bilaspur who is a stock witness and his testimony cannot be believed. Moreover he has also admitted that he was not on visiting terms with Fakir Singh and had not attended his last rites. It is also stated that Fakir Singh died at Naraingarh where his last rites were performed at the house of another brother. The Will in question is dated 3.6.1985 and Fakir Singh died on 11.7.1985 and difference between the execution of the Will and death is very short. It is also contended that the Will was executed at Bilaspur when Chhachrauli is nearer to the village of Fakir Singh. It was executed on Monday when the sub-Registrar was available. It is stated that Ram Saran, attesting witness does not know the father's name of the Fakir Singh. Besides, Fakir Chand, Deed Writer could not say as to which thumb impression of Fakir Singh was put on the Will. Ghanshyam Dass another attesting witness is stated to be a close friend of Prcn Singh beneficiary of the Will.
5. In response, learned counse1 appearing for the plaintiffs-respondent has contended that the Will has been duly proved on the record and the question whether the Will has been duly executed and is free from suspicion is a pure finding of fact which has been concurrently reached at by both the Courts below. Therefore, the conclusions reached at by the Courts below being essentially findings of fact are not liable to be interfered with in regular second appeal, it is stated that there are no suspicious circumstances in the execution of the Will and, therefore, the appeal is liable to be dismissed.
6. I have given my thoughtful consideration to the respective contention of the learned Counsel appearing for the parties. The scribe of the Will dated 3.6.1985 executed by Fakir Singh (since deceased) is Lala Fakir Chand (PW-1). who read over the same to the testator. Fakir Chand (PW-1) stated that he had scribed the Will Ex. P.1 and identities his signatures on the same. The Will was got typed by Lala Fakir Chand from a Typist, namely Data Ram. The other witness who has been examined to prove the Will is Rani Saran (PW-2) who is Lambardar of Bilaspur. He stated that he knew Fakir Singh who had executed the Will in his presence in the year 1985. The same was got prepared in favour of his nephews, namely, Prem Singh and Saran Singh and it was prepared by Lala Fakir Chand (PW-1) who read over the same to them and all the parties had fixed their thumb impressions/signatures thereafter. The health and mental condition of the executant at the time of execution of the Will Ex.P.l was also stated to be good and the executant was stated to be in his full senses.
7. Shri N.K. Jain, Document Expert, Ambala City appeared as DW-3 and he stated that he passed the course of Forensic Science and Criminology from Delhi University in 1973 after passing his M.A. and since then he was working as Hand print and Finger Print Expert. He had got practical training in hand-writing and finger print science during his course. In the case in hand he examined the disputed thumb impression of Fakir Singh Mark Q. 1 and Q. 2 on the Will dated 3.6.1985 (Ex. A.1) and submitted his report Ex. D.10. He compared the standard thumb impression of Fakir Singh Mark S. 1 and S. 2 on the sale deed Ex. D. 1 dated 1.5.1981. He examined all these thumb impressions in original in the Court and also took the photographs. In his opinion the disputed thumb impressions Q. 1 and Q. 2 on the Will Ex. P.1 dated 3.6.1985 were of the right hand and the standard thumb impression of Fakir Singh mark S. 1 and S. 2 on the sale deed Ex. D.1 were of the left hand. In the finger prints science; the left hand and right hand thumb impressions of the same person would be positively different from each other. On account of his reason, the disputed thumb impression Q. 1 and Q. 2 on Ex. A.1 was different from the standard thumb impression of Fakir Singh Mark S. 1 and S. 2 on Ex. D.1 The reasons for his opinion were given in his report Ex. D. 10 which was correct and signed by him. It is, therefore, apparent that the Will executed by Fakir Singh deceased which has been set up by the plaintiffs contains the right hand thumb impression. In the circumstances, the question of law which would require consideration by this Court is whether when the normal practice is to put left thumb impression by the male executants of the documents, would the putting of right thumb impression on the Will dated 3.6.1985 not create a suspicious circumstances which the propounder is bound to dispel and explain.
8. The common practice in the rural arrears amongst the illiterates is that except on account of some physical disability, it is generally 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 (he 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 the illiteracy they are unable to sign. This being the practice it is easy in case of any doubt or ambiguity to compare the thumb impression with the standard thumb impressions of the person concerned. Deviating from his practice would result in great hardship and any one wanting to set up a 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 already so as to, in case of doubt or suspicion, avoid the comparison of their thumb impressions with their standard and admitted thumb impression which are otherwise generally available. In Smt. Harbans Kaur and 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 Wills executed by males. Therefore, this practice of accepting the right thumb impressions of male executants on documents like a Willis 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.
9. In the case in hand, no reason has been given for deviating from his practice. Therefore, it is somewhat unusual for Fakir Singh to have put has right thumb impression on a document which is an important document being his Will when in the normal circumstances on the sale deed dated 1.5.1981 Ex. D.1 he had put his left thumb impression which is as per the prevalent practice. The intention of putting the right thumb impression on the Will can only be to avoid the comparison of the same with the standard thumb impression of the executant so as to take the stand that the executant inadvertently and unknowingly put the right thumb impression which is now not comparable. The propounder of the will has failed to dispel this suspicious circumstance which he was under an obligation to remove by leading cogent and convincing evidence. The reason recorded by the learned trial Court is that the handwriting expert has opined that the disputed document bears the right thumb impression of deceased Fakir Singh. It is further recorded by the learned trial Court that : "But I could not understand as to how this expert has come to this conclusion. It is not specifically mentioned that RTI (Right Thumb Impression) of deceased Fakir Singh were taken in the Court and then it was compared with specimen thumb impression of L.T.I. (Left thumb Impression) of deceased." Accordingly the contention of the learned Counsel for the defendant was held to be not maintainable. In fact the thumb impressions of a deceased person could not possibly have been taken in court. Therefore, the reasoning recorded by the learned Trial Court in rejecting the argument of the learned Counsel for the defendant is not tenable. Therefore, in my view the reasons and findings recorded by the Courts below as regards the validity of the Will dated. 3.6.1985 (Ex. P.1) are without any merit. The right thumb impressions were put so as to avoid the possibility of the same being got compared with the standard left thumb impression of Fakir Singh the testator of the Will (Ex. P.1). As such 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 circumstance of the case makes the Will (EX. P.1) set up by the plaintiffs to be doubtful inasmuch as the thumb impression could not be got compared.
10. Besides, nothing has been shown by the plaintiff-respondents, who are the propounder of the Will, to dispel with the circumstances as to why Fakir Singh, the testator had put his tight thumb impressions on the Will. This is more so for the reason that Lala fakir Chand (PW-1) was a regular Deed Writer. When this circumstance is on record, it is appropriate to note the other circumstances which cast doubt regarding execution of the Will (Ex. P.1). These inter alia are that the Will in question is an unregistered one. It was allegedly executed on 3.6.1985 and soon thereafter Fakir Singh died on 11.7.1985. The Will is executed at Bilaspur whereas Chhachhrauli Teshil is nearer to the village of the executant. The will has been executed at Bilaspur, however, there is no bus service from Lalhari Kalan to Bilaspur. These circumstances also show suspicion with regard to (he execution of the Will.
11. In the afore-noticed circumstances, the question of law as framed is answered in the manner that where the normal practice is of putting left thumb impression on the execution of various documents, the putting of the right impression so as to make it incomparable with the other standard thumb impression of the executant cannot be ruled out. In case a right thumb impression is put on a document like the Will, it is for the propounder to dispel the circumstances as to why the right thumb impression has been put or whether the executant was under a disability to put the left thumb impression as per normal practice. This having not been proved, the Will set up by the propounder is surrounded by suspicious circumstances and cannot be held to be genuine.
12. For the foregoing reasons, the appeal is allowed and the judgment and decree of the Courts below are set aside and the suit of the plaintiffs-respondents is dismissed.