Punjab-Haryana High Court
Sohan Singh vs Preet Kamal Singh And Others on 5 March, 2014
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No.2764 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.2764 of 2011 (O&M)
Date of decision:05.03.2014
Sohan Singh ....Appellant
Versus
Preet Kamal Singh and others ....Respondents
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether reporters of local newspapers may be allowed to see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest? Present:- Mr. R.D.Bawa, Advocate for the appellant.
Mr. Mohd.Yousouf, Advocate for the respondents.
RAKESH KUMAR GARG, J As per the averments made in the suit, one Mangal Singh son of Gurbachan Singh was owner in possession of suit land measuring 71 kanals 3 marlas situated at village Nahal, Tehsil Phillaur, District Jalandhar. Said Mangal Singh died on 26.6.2001 leaving behind the plaintiffs and defendants as his legal heirs. The plaintiffs and defendants No.1 and 2 as the sons along with defendants No.3 to 6 the daughters, defendants No.9 to 12 are the widow and son and daughters respectively of the predeceased son, defendant No.11 as son of predeceased son and defendant No.8 as daughter of pre-deceased son.
Kadian Savita 2014.03.18 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2764 of 2011 (O&M) 2
As per the further averments, said Mangal Singh had executed a registered Will dated 28.1.1994 bequeathing his estate in favour of the plaintiffs to the extent of 2/3rd share in equal share and in favour of defendants No.11 and 12 to the extent of 1/6th share each. After the death of Mangal Singh, plaintiffs as well as defendants No.11 and 12 entered into possession being the co- owners to the extent of their shares. Thus, according to the plaintiffs, in view of the registered Will in favour of the plaintiff and defendants No.11 and 12, the remaining defendants had no right, title or concern with the suit property. It was further averred in the suit that a week earlier to the date of filing of the suit, defendant No.1 along with other defendants attempted to take forcible possession and threatened to alienate the suit property, asserting that they have got the mutation bearing No.2407 sanctioned qua the estate of Mangal Singh in their favour as per natural succession. According to the plaintiff, alleged mutation was illegal, null and void as there was a registered Will executed by Mangal Singh in their favour. Thus, the necessity arose to file the instant suit for declaration along with consequential relief of injunction or in the alternative, suit for joint possession.
Upon notice, appellant (i.e. defendant No.1) appeared in the suit and filed written statement raising various preliminary objections. On merits, the factum of the suit property being the ownership of Mangal Singh was admitted to be correct. Further, it was denied that Mangal Singh executed a Will dated 28.1.1994 in Kadian Savita 2014.03.18 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2764 of 2011 (O&M) 3 favour of the plaintiffs and defendants No.11 and 12 as alleged. It was further stated that the Will was illegal, null and void and was the result of fraud and misrepresentation. It was also stated that Mangal Singh had no right to execute the Will as the suit property was ancestral in his hands. The mutation No.2407 qua the inheritance of the estate of Mangal Singh was rightly sanctioned and thus, defendant No.1-Sohan Singh has full rights in the property and even otherwise plaintiffs were not in possession and thus, question of taking forcible possession from them does not arise. The material averments of the remaining paras have been controverted and the dismissal of the suit was prayed for.
In replication, the averments raised in the written statement filed by defendant No.1 have been controverted and those of the plaint have been reiterated to be correct. From the pleadings of the parties, following issues were framed:-
1. Whether the plaintiffs are co-owners in possession to the extent of 2/3 shares in equal shares, whereas defendants No.11 and 12 are co-owners to the extent of 1/6th share each in the suit property? OPP
2. Whether Mangal Singh executed a registered Will dated 28.1.1994 in favour of plaintiffs and defendants No.11 and 12? OPP
3. Whether mutation No.2407 in favour of Kadian Savita 2014.03.18 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2764 of 2011 (O&M) 4 defendants is illegal, null and void and is liable to be set aside? OPP
4. Whether plaintiffs are entitled to the joint possession of the land to the extent of 2/3 share in equal shares and defendants No.11 and 12 to the extent of 1/6 share each, in the alternative relief? OPP
5. Whether the suit property is ancestral property of the plaintiffs and defendants? OPD
6. Whether the plaintiffs have got no locus-standi to file the present suit? OPD
7. Whether the suit of plaintiffs is not maintainable in the present form? OPD
8. Whether the suit is bad for mis-joinder and non-
joinder of necessary parties? OPD
9. Relief.
After hearing learned counsel for the parties and going through the pleadings and evidence on record, the trial Court decreed the suit of the plaintiffs with costs holding entitled to declaration as to their being the co-owners in possession to the extent of 2/3rd share whereas defendants No.11 and 12 were co- owners to the extent of 1/6th share each in the estate left by Mangal Singh. While decreeing the suit, trial Court observed as under:-
"10. After giving my thoughtful consideration to the Kadian Savita 2014.03.18 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2764 of 2011 (O&M) 5 rival contentions and on careful perusal of the entire evidence, the Court finds merit in the submissions put forth by the learned counsel for the plaintiffs. It has been duly established as to Mangal Singh having duly executed a legal and valid Will in favour of the plaintiffs to the extent of 2/3 share in equal share and defendant No.11 being his grandson and defendant No.12 his grandson to the extent of 1/6th share each. For proving the Will Ex.P-1 PW-1 Suba Singh has stepped into the witness box and has deposed as to the Will having been scribed by Tejinder Singh, the Deed Writer at the instance of Mangal Singh. After the contents were read over, Mangal Singh admitted the contents of the same being correct had appended his thumb impressions and thereafter, he along with the other attesting witness had appended their thumb impressions in the presence of Mangal Singh. PW-2 Pritam singh has also deposed in the like manner qua the due execution of the Will and on careful perusal of the contents of the Will, it is abundantly clear as to Mangal Singh having given the property to the extent of share of Sohan Singh defendant No.1 and his other sons and even to the grandsons of the Kadian Savita 2014.03.18 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2764 of 2011 (O&M) 6 son, who had predeceased him. The endorsement on the Will is Ex.P2. The mutation qua the inheritance of Mangal Singh bearing No.2407 has been reflected in the Jamabandi Ex.P3. It is worth making mentioned that in the civil suit filed by Sohan Singh defendant No.1 against Mangal Singh, which was decided vide judgment Ex.P4, the decree sheet of which is Ex.P-5, the land measuring 86 kanals 3 marlas had been given to defendant No.1 Sohan Singh. Thus, it further strengthens to the genuineness of the Will, as in the Will it has been specifically mentioned as to defendant No.1 Sohan Singh having been given his share. The mutation bearing No.1993 on the basis of the judgment and decree passed in favouf of Sohan Singh and the mutation in favour of the other sons and grand children have also been reflected in the Jamabandi Ex.P6.
11. The arguments put forth by Sh. Rajinder Sandhu, learned counsel for the defendant No.1 as to the property being ancestral in the hands of Mangal Singh is devoid of any substance, as no cogent evidence has been adduced to establish the ancestral nature of the property in the hands of Kadian Savita 2014.03.18 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2764 of 2011 (O&M) 7 Mangal Singh. Rather the testimony of PW-1 Suba Singh, upon which much emphasis has been laid by the learned counsel for the defendant as to his having stated as to the property in the hands of Mangal Singh being ancestral in nature but in the judgment and decree, whereby Sohan Singh defendant No.1 got 86 kanals 3 marlas, there is a specific mention as to the property having been partitioned amongst the family members. Thus, the jointness as per the said judgment and decree had come to an end, even if it is taken for the sake of argument, the Jamabandies Ex.D-1 to ExD-4 in no manner establishes as to the property in the hands of Mangal Singh being ancestral property.
Therefore, the arguments put forth by the learned counsel for the defendant No.1 are bereft of merit.
12. In the light of the above discussion, issues No.1,2 and 3 decided in favour of the plaintiffs. The plaintiffs are co-owners to the extent of 2/3rd share in equal share whereas defendants No.11 and 12 are co-owners to the extent of 1/6th share each, Mangal Singh had executed the Will dated 28.1.1994 and the mutation No.2407 is illegal, null and void. Issue No.4 is decided to the effect that as Kadian Savita 2014.03.18 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2764 of 2011 (O&M) 8 per the plaintiffs have been held entitled to the primary relief and as such this issue has become redundant. Issue No.5 is decided against the defendant No.1 as he has failed to establish the property in the hands of Mangal Singh being ancestral one."
Feeling aggrieved from the judgment and decree of the trial Court, defendant No.1 filed an appeal before the First Appellate Court which was also dismissed vide impugned judgment and decree dated 25.4.2011.
While dismissing the appeal, the lower Appellate Court noticed that execution and attestation of the Will in question (Ex.P1) by deceased Mangal Singh was duly proved as per the provisions of Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act and in fact, counsel for the defendant-appellant had challenged the judgment and decree of the trial Court upholding the Will only on the ground that trial Court has failed to appreciate the suspicious circumstances surrounding the execution of the Will. However, while passing the impugned judgment and decree dated 25.4.2011, the lower Appellate Court observed that execution of the Will which was a registered document was a voluntary act of testator who was in a sound disposing mind and there were no suspicious circumstance surrounding the execution of Will.
Still aggrieved, defendant No.1 has filed the instant Kadian Savita 2014.03.18 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2764 of 2011 (O&M) 9 appeal challenging the judgments and decrees of the Courts below submitting that following substantial questions of law arise in this appeal:-
a. Whether in the facts and circumstances of the case the impugned judgments and decrees of the Courts below are illegal and perverse and unsustainable being based on misreading of evidence on record?
b. Whether the findings of the Courts below are based on misreading of evidence on record?
c. Whether in view of admitted fact that the executant of alleged Will was of old aged man of 94 years of age, illiterate, weak and frail, the special onus was placed on the propounder of the Will to prove that the executant understood the contents of the Will and he executed the Will with free Will and consent as per parameters laid by Hon'ble the Supreme Court in Krishna Mohan Kal's case supra- AIR 2003 SC 4351, which has not been discharged by the propounder of the Will who also actively participated in execution of alleged Will.? d. Whether the Will in question is surrounded by suspicious circumstances in view of the submissions made above and therefore, mere Kadian Savita 2014.03.18 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2764 of 2011 (O&M) 10 registration thereof does not prove the validity of the Will in question?
e. Whether the property being a coparcenary property, as the deceased remained owner of the whole property in Revenue record which he inherited from his forefathers as is clear from Jamabandi for the year 1954-55 Ex.D-3 he could not have executed the Will in question?
In support of his case, learned counsel for the appellant has vehemently argued that the Will in question is surrounded by suspicious circumstances. However, the Courts below have acted illegally and without jurisdiction while decreeing the suit on the basis of a perfunctory and highly suspicious Will and have misread the evidence on record drawing wrong conclusion by wrong process of reasoning. It is his further case that at the time of execution of Will, age of the executant was 94 years and no evidence having been led would prove that he was not in sound disposing mind to understand the contents of the Will. Moreover, it is an admitted fact that executant of the Will was of old age of 94 years, illiterate and frail person and therefore, the onus was upon the beneficiaries of the Will to prove that the executant understood the contents of the Will and he executed the same with free consent. However, respondents have failed to discharge the aforesaid onus which was upon them.
It is the further case of the appellant that the beneficiaries Kadian Savita 2014.03.18 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2764 of 2011 (O&M) 11 of the Will have participated in execution of the Will and their active participation in registration of the Will creates a suspicious circumstance. According to the counsel for the appellant, PW3-Avtar Singh, accompanied the testator for the purpose of the execution of the Will and remained standing outside the office of Deed Writer and thus, participation of PW3-Avtar Singh in the process of execution and registration of the Will can not be said to be the result of free mind of the testator in such an old age. Learned counsel for the appellant has vehemently argued that no sufficient reason has been given by Mangal Singh to disentitle the appellant of his legitimate share in the property and the Courts below have drawn illegal adverse inference from the fact that the defendant-appellant had already got his share of land through a Civil Court decree whereas that share is also given equally to the other sons of deceased Mangal Singh and therefore this fact cannot be held to be a good reason to disentitle him of his share from the property of his father. Learned counsel for the appellant has further pointed out that Mangal Singh died on 26.6.2001 and immediately, thereafter, mutation No.2407 was sanctioned on the basis of natural succession in favour of his class one legal heirs. The mutation bearing No.2407 qua the inheritance of Mangal Singh has been reflected in the Jamabandi for the year 1999-2000(Ex.P3) but no such Will was produced before the Revenue Authorities at the time of sanctioning of mutation. Thus suppressing the fact of existence of alleged Will give rises to serious Kadian Savita 2014.03.18 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2764 of 2011 (O&M) 12 suspicious circumstance.
Counsel for the appellant has further argued that PW-2- Pritam Singh one of the marginal witnesses, was resident of some other village whose presence could not have been procured by the deceased without active participation of the respondents at the time of execution of the alleged Will. Thus, respondents have failed to dispel all the aforesaid suspicious circumstances and have failed to prove the Will to the satisfaction of the conscience of the Court. Moreover, the witnesses produced by the plaintiff-respondents are highly interested persons and their testimony could not have been taken into consideration. Thus, the impugned judgments and decrees of the Courts below are liable to be set aside as substantial questions of law as noticed above, do arise in this appeal.
Counsel for the appellant has further argued that the mere fact that Will is registered document will not by itself be sufficient to dispel all reasonable doubts regarding the validity of the Will where suspicion exists. According to him, the evidence as to registration of Will shows that it was done in perfunctory manner and such registered Will is not of much value. In support of his case, learned counsel for the counsel relied upon the judgment of Hon'ble the Supreme Court in Rani Purnima Debi and another vs. Kumar Khagendra Narayan Deb and another, AIR 1962 Supreme Court
567.
Counsel for the appellant has also relied upon a judgment Kadian Savita 2014.03.18 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2764 of 2011 (O&M) 13 of Hon'ble the Supreme Court in Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao and others, AIR 2007 Supreme Court 614(1) to contend that in unnatural disposition made in the Will without giving any reason and a beneficiary taking active part in execution of the Will raise suspicious circumstances against such a Will. Learned counsel for the appellant has also relied upon a judgment of Hon'ble the Supreme Court in Krishna Mohan Kula alias Nani Charan Kul and another vs. Pratima Maity and others, AIR 2003 Supreme Court 4351 to contend that age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even dehors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before the Court.
Counsel for the appellant has submitted that Will in question is full of suspicious circumstances and thus is a forge and fabricated document. The respondents have failed to dispel all the suspicious circumstances, thus, the judgments and decrees of the Courts below are liable to be set aside.
On the other hand, learned counsel for the plaintiff- respondents supported the judgments and decrees of the Courts below submitting that the Courts below on the basis of evidence on Kadian Savita 2014.03.18 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2764 of 2011 (O&M) 14 record have recorded a concurrent finding in favour of the plaintiff- respondents holding that execution of the Will is duly proved and there were no suspicious circumstances surrounding the Will. It has been brought to the notice of this court that executant remained alive for seven years after execution of the Will which shows that he was keeping good health. According to the learned counsel for the respondents, the execution of the Will in question stands proved in accordance with law under the provisions of the Indian Evidence Act and Indian Succession Act 1925. It was also argued that there is no bar for a witness, if he belongs to the other village. Moreover, both the attesting witnesses have been able to prove that the execution of the Will was voluntary act of testator and he was in sound disposing mind. Merely because Avtar Singh-PW3 accompanied the testator will not amount to his active participation and thus, the appeal being without any merit, is liable to be dismissed.
I have heard learned counsel for the parties and perused the impugned judgments and decrees of the Courts below and the judgments cited at the bar.
At the outset, it may be noticed that counsel for the appellant has not raised any argument to challenge the due execution of the Will in question and has confined his argument only with regard to suspicious circumstances surrounding the Will. At this stage, it may further be noticed that only defence taken in the written statement by the appellant is to the effect that the Will in question is Kadian Savita 2014.03.18 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2764 of 2011 (O&M) 15 the result of fraud and misrepresentation and has no binding effect upon his legal rights. No further objection has been raised in the written statement.
Not only this, even the particulars of the fraud have not been pleaded as required under Order 6 Rule 4 of the CPC. Even before this Court, learned counsel for the appellant has not clarified as to how the arguments raised with regard to alleged suspicious circumstances surrounding the Will amount to fraud as argued. Once execution of the Will in question stands proved as per the requirement of law, and no challenge has been made to the same, the defence taken on behalf of the appellant in the written statement to the effect that the alleged Will is result of fraud, is not sustainable.
Not only this, it is relevant to mention that two attesting witnesses, namely, Suba Singh and Pritam Singh have stepped into witness box as PW1 and PW2 respectively and have categorically deposed on oath that Will was executed by Mangal Singh in favour of the plaintiffs and defendants No.11 and 12 in their presence. Mangal Singh thumb marked the same in their presence and both of them attested the same in the presence of Mangal Singh. Thus, execution of the Will stands proved.
Admittedly, PW3-Avtar Singh though accompanied the testator for the purpose of execution of the Will but remained standing outside the office of Deed Writer. Thus, it has remained un- explained as to how the person who is standing outside the office of Kadian Savita 2014.03.18 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2764 of 2011 (O&M) 16 the Deed Writer can influence the executant.
It is not in dispute that Mangal Singh was living with Avtar Singh and in these circumstances, he was definitely expected to accompany the old executant for the execution of the Will, the beneficiaries being the grand children of the deceased. Both the witnesses categorically stated that when the Will was executed by the testator, he was in sound disposing mind and such execution was made by him out of his free will. The registration of Will by the Sub Registrar is also one of the strongest circumstances that execution of such Will by the testator was without any undue pressure from the side of beneficiaries. Thus, it cannot be said that he was in any manner mentally unable to execute such Will or that there was any chance of influence upon him by the beneficiaries of the Will. Had it been so, the testator could have cancelled the Will during the seven years of his life.
The statement made on behalf of the appellant that at the time of mutation on the basis of the natural inheritance Will was not produced before the Revenue Authorities, is of no help to the appellant as there is nothing on record to prove that at the time of sanction of the aforesaid mutation, plaintiff-respondents were present or any notice was served upon them or any of other beneficiaries of the Will. Once such mutation was sanctioned at the back of the plaintiffs, there was no occasion for them to produce the Will or to raise any objection at the time of sanctioning of such mutation on the Kadian Savita 2014.03.18 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2764 of 2011 (O&M) 17 basis of natural succession. Not only this, Mangal Singh died on 26.6.2001 and present suit was filed after coming to know about the sanction of mutation on 28.10.2003. Thus, it cannot be said that there was any willful delay on the part of the plaintiffs to highlight the Will when they have filed suit for declaration within 2 ½ years from the date of death of Mangal Singh.
The appellant has also sought to produce on record jamabandi as Annexures A1 and A2 vide C.M.No.10321-C-2011 to show that Mangal Singh had given the land to his other sons also previously.
The evidence in this regard is not required to be produced as the fact that Mangal Singh had given some land to his other sons also is already on record. It is not a fact without which the Court cannot effectively decide the issue in question. Though, the adverse inference against the appellant has not been drawn only on the basis of aforesaid fact, there is overwhelming evidence on record that the Will was genuinely and validly executed by the executant while in sound disposing mind. Thus, the prayer made for leading additional evidence is rejected.
Undisputedly, Mangal Singh has suffered consent decree in favour of Sohan Singh regarding his other land. Further, it is not in dispute that Mangal Singh was the absolute owner of the suit property and competent to treat the same in a manner he likes. Moreover, the beneficiaries of the Will are the grand children of said Kadian Savita 2014.03.18 11:50 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2764 of 2011 (O&M) 18 Mangal Singh. In these circumstances, the execution of the Will was natural by Mangal Singh in favour of his grand children. There is no dispute with regard to the judgments relied upon by counsel for the appellant, however, these judgments are not applicable in the facts and circumstances of the instant case as no such circumstance exists in the present case as in the aforesaid cases.
In view thereof, this Court finds no material irregularity in the findings recorded by the Courts below. It may further be noticed that it is not a case where findings have been recorded by the Courts below without any evidence or the evidence on record has been misconstrued and even if another view is possible on the reading of the evidence on record, this Court while exercising its powers under Section 100 CPC, will not substitute such view with the findings of the Courts below.
Thus, no substantial questions of law, as raised, arise in this appeal.
Dismissed with costs which are assessed at ` 1000/-.
March 05, 2014 (RAKESH KUMAR GARG)
savita JUDGE
Kadian Savita
2014.03.18 11:50
I attest to the accuracy and
integrity of this document
High Court Chandigarh