Punjab-Haryana High Court
Parvinder Kumar @ Davinder Kumar And ... vs Sanjiv Kumar And Others on 24 January, 2014
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.4281 of 2012 (O&M)
Date of decision: 24th January, 2014
Parvinder Kumar @ Davinder Kumar and others
Appellants
Versus
Sanjiv Kumar and others
Respondents
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether Reporters of Local Newspapers may be allowed
to see the judgment?
2. Whether to be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Aakash Singla, Advocate for the appellants.
RAKESH KUMAR GARG, J.
CM No.11848-C of 2012 Application is allowed subject to all just exceptions.
RSA No.4281 of 2012 (O&M)This is defendants' second appeal challenging the judgments and decrees of the Courts below whereby suit of the plaintiff-respondents for possession by way of partition has been accepted and a preliminary decree for partition has been drawn.
Plaintiff-respondents filed the instant suit for possession by way of partition of 1/4th share of residential house measuring 25' x 75', duly described and depicted in the head note of the plaint, bearing Singh Rattan Pal 2014.01.31 17:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.4281 of 2012 (O&M) 2 number B-II/769, situated within the Municipal limits of Kotkapura on the averments that one Chaman Lal son of Daulat Ram was the owner of this house, who died in the year 2001 leaving behind his widow-Raj Rani and children Amrit Lal, Parvinder Kumar @ Davinder Kumar (defendant No.1), Vijay Kumar and Parvesh Kumari (defendant No.3).
The plaintiffs claimed that they are heirs of Amrit Lal, pre-deceased son of Chaman Lal, and have inherited 1/5th share each of the estate of Chaman Lal claiming that after the death of Raj Rani, widow of Chaman Lal in the year 2002 her 1/5th share, which she had inherited upon the death of Chaman Lal along with other heirs, has further devolved upon her heirs to the extent of 1/4th share each out of her 1/5th share claiming that both Chaman Lal and Raj Rani have died intestate and on 25.05.2005 defendant No.1 Parvinder Kumar @ Davinder Kumar in connivance with the Civic Authorities got recorded the share of Raj Rani in their names illegally and at the back of the plaintiffs.
Further that defendant No.1 is alleged to have executed a sale deed on 02.11.2005 in favour of defendant No.2 (his wife Veena Rani), which was also illegal and thus, they were entitled to seek possession of 1/4th share out of the 1/5th share of Raj Rani.
Defendant No.1 and 4 to 7 filed their joint written statement raising various preliminary objections to the effect that the plaintiffs were not legal heirs of Chaman Lal, who executed a valid Will on 14.03.1992 bequeathing his movable and immovable property in favour of his wife Raj Rani with her life interest and disinheriting his son Amrit Lal and daughter Parvesh Kumari @ Parvesh Kanta and as a Singh Rattan Pal 2014.01.31 17:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.4281 of 2012 (O&M) 3 consequence of this Will, Parvinder Kumar defendant No.1 and Vijay Kumar another deceased son of Chaman Lal have inherited this property after the death of Raj Rani and that defendants No.4 to 7 are legal heirs of Vijay Kumar and the entries in the Municipal record were correct. It was further stated that they have renovated the house by spending huge amount of money. It was further stated that Raj Rani had died but in fact she was given full rights by her husband. Defendant No.2-Veena Rani, wife of defendant No.1, in her written statement submitted that the plaintiffs were legal heirs of Chaman Lal, who had executed a valid Will on 14.03.1992 by virtue of which the property had devolved upon his heirs. She further admitted ownership of Chaman Lal over the house in question and the children born out of the wedlock of Chaman Lal and Raj Rani, and further took a specific stand that Amrit Lal and Parvesh Kumari were disinherited by their father from any share in the property and that after compliance of the Will was undertaken she purchased the property for a valuable consideration which is a valid transaction in her favour through registered sale deed dated 02.11.2005 for a sum of `2,05,000/-. Denying all other averments of the plaint, dismissal of the suit was prayed for.
On the basis of the pleadings of the parties, the following issues were framed by the trial Court:
1. Whether the plaintiffs are entitled to 1/4th share by way of partition, as legal heirs of Chaman Lal deceased, of residential house as prayed for? OPP Singh Rattan Pal 2014.01.31 17:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.4281 of 2012 (O&M) 4
2. Whether Chaman Lal deceased executed a Will dated 14.03.1992 in favour of his wife Raj Karni and further in favour of Parvinder Kumar and Vijay Kumar, if so its effect? OPD
3. Whether defendant No.1 executed and registered a sale deed dated 02.11.2005 in favour of defendant No.2, if so its effect? OPD
4. Whether the plaint is liable to be rejected under Order 7 Rule 11 CPC? OPD
5. Relief.
Vide judgment and decree dated 19.02.2010, the trial Court discarded the Will dated 14.03.1992 and passed a preliminary decree to the effect that the plaintiffs were entitled to 1/5th share at the death of Chaman Lal and 1/4th share out of 1/5th share at the death of Raj Rani.
Against the aforesaid findings of the trial Court, defendants No.1 to 4 filed an appeal before the first appellate Court, which was also dismissed vide judgment and decree dated 18.04.2012. While dismissing the appeal, the lower appellate Court observed as under:
"Learned counsel for the two sides have advanced a lone submission whereby Shri B.D. Kumar Advocate for the appellants has stressed the fact that to prove a will, the only contentious issue, the attesting witnesses who are dead and their signatures on the will have been duly proved by their witnesses. The will is deemed to have been established and proved beyond law and which arguments have been refuted by Shri Amrit Bansal Singh Rattan Pal 2014.01.31 17:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.4281 of 2012 (O&M) 5 Advocate learned counsel for the respondents citing AIR 1990 Supreme Court, 396, Kalyan Singh v. Smt. Chhoti and others, AIR 1990 Supreme Court, 1742, Ram Piari v. Bhagwant and others, 1984 The Punjab Law Reporter, 278, Mit Singh and others Versus Malkiat Singh and others, 2011 (2) Civil Court Cases, 854(P&H), Malkiat Kaur v. Hardev Singh and others, 1976 PLJ, 263, Kapoor Singh and another Versus Jangir Singh and others, 1993 PLJ, 188, Avtar Singh and others Versus Mst. Bhagi (deceased) now Rep by Legal heirs, 2003(1) RCR (Civil),409, Supreme Court, Janki Narayan Bhoir Versus Narayan Namdeo Kadam, 1994(2) PLR, 742, Khanda Singh and another Versus Natha Singh and others and 1996 (1) Apex Court Journal, 221, C. Masilamani Mudaliar & Ors. Vs. The Idol of Shri Swaminathaswami Swaminathaswami Thirukoil & Ors. submitting that by virtue of section 14 of the Hindu Succession Act, Raj Rani being the widow of Chaman Lal having inherited the estate of the deceased husband has come to be absolute owner of the property and citing 1999 (2) RCR (Civil) 38, Supreme Court, Naresh Kumar (dead) by LRs versus Shakshi Lal (dead) By L.Rs and 2008 (1) RCR (Civil), 97, Supreme Court, Santhosh and others Versus Saraswathibai and another argued that the question of will cannot disturb such an inheritance. Arguing that as has been laid down in 2009(2) Recent Civil Reports, 380, Karnaiul Singh Versus M/s Kalra Brothers, Sirsa, AIR 1972 Rajasthan, 09, Dhani Bai and others v. Neem Kanwar and others and 1996(2) Apex Court Journal, 44 (SC), S. Gopal Reddy Vs. State of Andhra Pradesh the evidence of an Expert witness is very weak piece of evidence and the testimony of Anil Kumar Gupta Singh Rattan Pal 2014.01.31 17:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.4281 of 2012 (O&M) 6 Handwriting and Finger Print Expert DW7 does not helps the case of the defendants and prayed that the impugned findings needs to be upheld being correct appreciation of the evidence and law. Going through the submissions of the two sides, it is a pure question of will dated 14.03.1992. It is not disputed by the learned counsel for the parties that the Will Ex.D1 is an unregistered document and even its scribe Naranjan Singh, Deed Writer, has died and the relevant entry in the register of the Scribe has been proved as Ex.DW1/B. Shri B.D. Kumar Advocate learned counsel for the appellant does not disputes that both the marginal witnesses Rajinder Parshad Chopra Ex-Municipal Commissioner and Dharamvir Ex-Municipal Commissioner have died and signatures of one of them namely Rajinder Parshad Chopra have sought to be proved by DW2 Sanjiv Chopra, his son, by means of Ex.DW2/A and rather in his cross-
examination accepts that he cannot tell the peculiar features of the signatures of his father and the will was not executed in his presence. The will being a solemn document, thus, needs to be proved through impeccable cogent and reliable evidence and as has been laid down in the case of Surindra Pal and others v. Dr. (Mrs) Saraswati Arora report in AIR 1974 Supreme Court, 1999 the propounder of the will is supposed to prove that the will was signed by the testator and that he was at the relevant time is a sound disposing state of mind and understood the nature and effect of dispositions and that he put his signatures to the testament on his own free will and that he has signed it in the presence of two witnesses, who attested in his presence and in the presence of each other and, thus, the propounders have not established by cogent means that the executant had Singh Rattan Pal 2014.01.31 17:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.4281 of 2012 (O&M) 7 duly executed the will, as firstly it is no where established on the record by any of the witnesses of the plaintiffs upon whom a heavy onus lay that the executant at the relevant time was in a sound state of mind or it was a voluntary act of the executant. More so, the will being unregistered document stirs the conscience of the Court to rule out any falsity and a close look at this will Ex.D1 shows that the date 14.03.1992 has been subsequently incorporated as it is clearly in a different ink from the ink in which the body of the will has been written nor is in consonance with the ink bearing the signatures and endorsement of the Deed Writer nor the name of Chaman Lal purported to have been written by the Deed Writer below which signatures of Chaman Lal are there and even the names of Rajinder Parshad Chopra and Dharamvir so claimed to be marginal witnesses of this will are in different ink rather shows that even these names were never written by the Deed Writer nor they tally with the ink in which the signatures of these witnesses have been made. The mere fact that entry has been made in the Deed Writer's register as Ex.D1/B proved by DW1 Tarsem Chand does not cuts much ice for the propounders of the will as neither the scribe is available nor any reason is forthcoming as to probably what led to non registration of this will when apparently the executant and the marginal witnesses appear to be well read and the witnesses are social figures and the testimony of DW1 Tarsem Lal has not much to hold and DW2 Sanjiv Kumar Chopra similarly is of no consequence and the testimony of DW4 Surinder Pal Singh has not much to offer except that Chaman Lal has sold some property to him through registered sale deed dated 29.04.1997. The deposition of defendant Parvinder Kumar DW5 is neither a witness to Singh Rattan Pal 2014.01.31 17:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.4281 of 2012 (O&M) 8 the sale deed executed by his father and has only brought about that they had served their father and mother and the reason why the will was executed in their favour and the most material admission by him is that the house in question was ancestral property in the hands of Chaman Lal further puts to doubt the authority of Chaman Lal to dispose off such an ancestral coparcenary property without the consent of his children, who by that analogy as is reflected from the pleadings and the evidence on that very day of sale were well grown up and rather accepts that he has sold his share to his wife. The evidence of Pawan Kumar Registration Clerk of the office of Sub Registrar DW6 has only proved the sale deed Ex.DW6/A executed by Chaman Lal in favour of Surinder Pal Singh apparently to establish the signatures and thereafter is DW7 Anil Kumar Gupta Handwriting and Finger Print Expert, who accepts in his report Ex.DW7/A that the standard signatures of Chaman Lal were procured from the certified Photostat copy of the sale deed rather is a distressing feature for the propounders of the will and thus the standard signatures of Chaman Lal have not been cogently proved and rather on the other hand the plaintiffs have examined Sanjiv Kumar one of the plaintiffs as PW1 by means of his affidavit Ex.PW1/A to bring about the status of the property and the fact that the deceased Chaman Lal died intestate and as has come in the cross-examination of PW1 Sanjiv Kumar, Amrit Lal had predeceased Chaman Lal and even his son Vijay Kumar has died and a clear perusal of the will Ex.D1 reflects that after the death of the executant his property movable and immovable would devolve upon his wife and it is not the case of the appellants' counsel as per his submissions that Raj Rani, who died in the year 2002, Singh Rattan Pal 2014.01.31 17:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.4281 of 2012 (O&M) 9 also executed any will and, therefore consequent upon her death as has been laid down in 1999(2) RCR (Civil), 38, Supreme Court and 2008 (1) RCR (Civil), 97 Supreme Court (ibid) relied upon by the respondents' counsel, such a right of a widow becomes a pre-existing right by way of her maintenance as a full owner and which arguments could not be controverted by the counsel for the appellants Shri B.D. Kumar Advocate and it is not a grant of a property without any pre-existing right by way of gift nor prescribes any restricted estate in favour of the widow and, therefore, she becomes an absolute owner and by virtue of her death in the year 2002 the property that has come in her hands by virtue of law of succession. The will Ex.D1 ought to devolve upon her heirs by virtue of law of succession. The will Ex.D1 as has been detailed above and in view of the law laid down in AIR 1990 Supreme Court, 396, AIR 1990, Supreme Court, 1742, 1984 The Punjab Law Reporter, 278, 2011 (2) Civil Court Cases, 854 (P&H), 1976 PLJ 263; 1993 PLJ, 188, 2003 (1) RCR (Civil), 409, Supreme Court, 1994(2) PLR, 742, and 1996 (1) Apex Court Journal, 221, SC (ibid) being a suspicious document needs to be discarded. The learned Lower Court while adjudicating on the issues in this case has rightly returned findings on the issues that the suspicious circumstances shrouding the will were never dispelled and has rightly come to the conclusion that consequent upon death of Chaman Lal each of his heirs would inherit 1/5th share and after the death of Raj Rani 1/5th share belonging to her inherited by her would again devolve upon her children in equal shares who are alive and by the heirs of her pre- deceased children and in view of the findings on issues No.1 and 2 the sale deed dated 02.11.2005 executed by Singh Rattan Pal 2014.01.31 17:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.4281 of 2012 (O&M) 10 defendant No.1 in favour of defendant No.2 is rendered inoperative and ineffective and, therefore, the findings recorded by the learned Lower Court on issues No.1 and 2 needs to be upheld. No arguments were put forth before me at the time of arguments on issues No.3 and 4 and, therefore, the findings of the learned lower Court on issues No.3 and 4 also stand affirmed."
Still not satisfied, defendants have filed the instant appeal submitting that the following substantial questions of law arise in this appeal:
(a) Whether mere non-registration of a Will is a suspicious circumstance sufficient enough to discard the Will?
(b) Whether propounder of a Will is required to lead separate evidence, apart from the evidence of due execution of the Will, of soundness of mind of testator and voluntary execution even when there is no pleading to the contrary by the other side?
(c) Whether the circumstances not enumerated by the other side in the pleadings and not put to the propounder of the Will in his cross-examination can be used against him as suspicious circumstances without affording the propounder an opportunity to explain the same?
(d) Whether the life estate created in favour of a female Hindu remains to be a limited life interest only by Singh Rattan Pal 2014.01.31 17:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.4281 of 2012 (O&M) 11 virtue of Section 14(2) of Hindu Succession Act and does not enlarge into absolute interest u/s 14(1) of the Act in view of the law laid down by the Hon'ble Supreme Court in Gumpha v. Jaibai: 1994(2) SCC 511 & Sadhu Singh v. Gurdwara Sahib Narike:
2006(8) SCC 75?
(e) Whether a man is not presumed to be sane unless proved to the contrary?
(f) Whether the findings of the ld. Courts below are perverse and a result of mis-reading and non-reading of the oral as well as documentary evidence on the file?
Learned counsel for the appellants has vehemently argued that in the instant case, the Will Ex.D1 is duly proved on the file in terms of Section 69 of the Indian Evidence Act, 1872 since both the attesting witnesses, namely, Rajinder Parshad Chopra and Dharamveer and even the scribe, namely, Niranjan Singh documents writer, have died and DW-1 Tarsem Lal son of Niranjan Singh documents writer identified the handwriting of his father on the Will Ex.D1 and also proved the entry of his register as Ex.D1/B further testifying that the Will Ex.D1 was scribed by his father in his presence;
whereas DW-2 Sanjeev Chopra identified the signatures of his father Rajinder Prashad Chopra on the Will Ex.D1 and DW-7 Anil Kumar Gupta, Handwriting and Fingerprint Expert, proved the Will Ex.D1 and Singh Rattan Pal 2014.01.31 17:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.4281 of 2012 (O&M) 12 entry Ex.D1/B to be bearing the signatures of Chaman Lal testator.
There is no rebuttal to the aforesaid overwhelming evidence produced on record by the appellants, and thus, they had sufficiently discharged their onus to prove the due execution of the Will in question and the onus was upon the plaintiff-respondents to disprove the same and in this regard they have miserably failed. In these circumstances, the courts below have wrongly discarded the said Will.
Learned counsel for the appellants has further argued that in their pleadings, the plaintiff-respondents have not raised even a single suspicious circumstance surrounding the Will Ex.D1 and have raised an alternative plea of Raj Rani having become the absolute owner of the suit property, and thus, the courts below have travelled beyond the pleadings and evidence on file. Furthermore, the approach of the courts below while holding that Raj Rani became the absolute owner of the suit property by virtue of Section 14 of the Hindu Succession Act, is totally wrong and incorrect and is the result of wrong application of law. According to learned counsel for the appellants, Raj Rani did not become the absolute owner of the property in question as the property had come to her by way of Will giving her a limited right for her lifetime, and thus, the impugned judgments and decrees of the Courts below are liable to be set aside.
I have heard learned counsel for the appellants and perused the impugned judgments and decrees of the Courts below.
Singh Rattan Pal 2014.01.31 17:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.4281 of 2012 (O&M) 13The only issue in this case is whether Chaman Lal executed Will dated 14.03.1992 in favour of the appellants and if so, what is its effect?
Learned counsel for the appellants could not dispute the fact that in case Will in question as set up by the appellants is discarded, all the children of Chaman Lal will inherit the suit property to the extent of 1/4th share each as Raj Rani wife of Chaman Lal had died in the year 2002 intestate. The learned counsel further could not dispute that the question raised on behalf of the appellants on the basis of Will dated 14.03.1992 before the courts below as to whether Raj Rani had become absolute owner of the suit property or had a limited right during her lifetime does not arise between the parties even if, Will is proved or not, as Raj Rani had died intestate in the year 2002 and in that eventuality Amrit Lal (predecessor in interest of the plaintiff-
respondents) on one hand and defendants No.1, 3 and Vijay Kumar (predecessors in interest of defendants No.4 to 7) will inherit in equal shares, as in earlier situation on her death the property will devolve upon her children in equal share.
So far as the findings of the courts below on the issue of Will dated 14.03.1992 executed by Chaman Lal in favour of his wife Raj Rani are concerned, it is suffice to say that the courts below on appreciation of evidence have recorded a concurrent finding to the effect that the Will, which was an unregistered document, was full of suspicious circumstances.
No other argument has been raised on any other issues.
Singh Rattan Pal 2014.01.31 17:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.4281 of 2012 (O&M) 14Thus, the substantial questions of law, as raised, do not arise at all in this appeal.
No merits.
Dismissed.
(RAKESH KUMAR GARG) JUDGE January 24, 2014 rps Singh Rattan Pal 2014.01.31 17:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court