Punjab-Haryana High Court
Ajmer Kaur And Others vs Unknown on 6 September, 2012
R.S.A No. 3537 of 2012 (O&M) ::1::
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
R.S.A No. 3537 of 2012 (O&M)
Date of decision : September 06, 2012
Ajmer Kaur and others,
...... Appellants
v.
Inderjit Singh and others,
...... Respondents
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CORAM : HON'BLE MR.JUSTICE AJAY TEWARI
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Present : Dr. Amol Rattan Singh Sidhu, Sr. Advocate
with Mr. Andal Jindal, Advocate
for the appellants.
Mr. R.K.Gupta, Advocate
for the Caveators/respondents.
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1. Whether Reporters of Local Newspapers may be allowed to see the
judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
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AJAY TEWARI, J (Oral)
This appeal has been filed against the judgment of the lower appellate Court upholding the Will in favour of the deceased-defendant No.1 and also reversing the decree of the trial Court wherein it set aside a consent decree suffered by defendant No.1 in favour of other defendants.
Bakhtaur Singh was the owner of the property in dispute and he had five daughters. Four daughters were married and settled, while the fifth daughter viz defendant No.1 was unmarried and resided with him. He executed a Will dated 8.1.1974 registered on 14.1.1974 in favour of the said fifth daughter-defendant No.1. After more than two decades, the said fifth R.S.A No. 3537 of 2012 (O&M) ::2::
daughter suffered a decree in favour of her first cousin (Chacha's son) and his sons and thereafter the instant suit was filed challenging the said Will as well as the said decree suffered by defendant No.1. As mentioned above, both the Courts upheld the validity of the Will.
At the first instance, learned senior counsel for the appellants has argued that the Will is surrounded by suspicious circumstances. The first circumstance is that the Will was executed on 8.1.1974 but was registered on 14.1.1974. This argument has been considered by the lower appellate Court who held that the testator and the witnesses did try to get the Will registered but the Sub Registrar was not available and, therefore, the Will was registered after 4 or 5 days i.e on 14.1.1974. Learned counsel for the appellants has argued that in fact evidence was led to prove that the Sub Registrar had registered sale deeds on 8th and 9th of January 1974 and, therefore, the deposition that he was not available on 8th of January is false. The lower appellate Court has considered this argument also and held that it could be possible that when the testator went to get the Will registered, the Sub Registrar was not available at that time.
The second argument raised by the learned counsel is that one of the attesting witnesses viz Puran Singh, Lambardar had signed the original Will but when he appeared before the Sub Registrar his thumb impression was obtained.
This point has also been considered by the lower appellate Court who has held that the witness had deposed that the said Puran Singh had injured his hand and, therefore, could not sign the Will.
The third suspicious circumstance pointed out by the learned R.S.A No. 3537 of 2012 (O&M) ::3::
counsel for the appellants is the fact that all the other daughters of Bakhtaur Singh were completely ignored.
This argument has also been considered by the Courts below who have held that once four daughters were married and well settled, the fact that they were ignored in the Will cannot be a suspicious circumstance.
As regards the contention that defendant No.1 could not have any family settlement with her cousin, the lower appellate Court has held that the appellants had no right to challenge the said consent decree during the life time of defendant No.1.
The following questions of law have been proposed :-
" (i) Whether the Will can be held to be duly proved by examining one of its attesting witnesses without producing the original Will at the time of deposition of such attesting witnesses ?
(ii) Whether the Will in question is shrouded by suspicious circumstances and is liable to be discarded ?
(iii) Whether the mere registration of Will dispenses the onus of the propounder to prove its due execution and dispel all the suspicious circumstances ?
(iv) Whether the presumption of genuineness of a document as provided under Section 90 of Indian Evidence Act is available to the Will when such Will is not coming from the lawful custody and especially when no record from the office of Registrar has been produced where the said document is registered and no such plea has been taken ?
(v) Whether no family arrangement/settlement can be taken place between the cousin brothers/sisters and such arrangement if set up, creates new rights in favour of transferee and in consequences such collusive decrees require compulsory registration as per Section 17 of the Indian Registration Act ?
(vi) Whether right to an immovable property can be left into the air ?
R.S.A No. 3537 of 2012 (O&M) ::4::
(vii) Whether the findings of both the Courts below are result of misreading of evidence ?"
It would be seen that questions No.(i) to (iv), (vi) and (vii) are pure questions of fact. Counsel for the appellants has taken me through the evidence recorded but has not been able to persuade me that the findings recorded are either based on no evidence or are based on such misreading of evidence as would render the same so perverse as to be liable for interference under Section 100 of the CPC. As regards, question No.(v), this argument could not be raised by the appellants during the life time of defendant No.1. Consequently, holding the questions proposed against the appellants, this appeal is dismissed with no order as to costs.
( AJAY TEWARI ) September 06, 2012. JUDGE `kk'