Punjab-Haryana High Court
Mohinder Singh And Others vs Lachhman Singh And Others on 9 December, 2013
Equivalent citations: AIR 2014 (NOC) 484 (P&H.)
R.S.A. No.1558 of 1989 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA, AT
CHANDIGARH
*****
R.S.A. No.1558 of 1989
Date of Decision : 09.12.2013
Mohinder Singh and others ...Appellants
Versus
Lachhman Singh and others ... Respondents
CORAM : HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
Present : Mr. G.S.Punia, Advocate,
for the appellants.
Mr. Parveen Chauhan, Advocate,
for the respondents.
1. Whether Reporters of local papers may be allowed to see the judgment?
Yes.
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes.
MAHAVIR S. CHAUHAN, J.
Civil Suit No.176 of 26.07.1982 was brought by Lachhman Singh and Balwinder Singh (hereinafter referred to as 'the plaintiffs') against Natha Singh, Mohinder Singh, Malkiat Singh and Darshan Singh (hereinafter referred to as 'the defendants') for declaration to the effect that they were owners and in possession of land comprised in khewat No. 126/131, khatauni No. 298, 299, khasra Nos. 78/23/1, 23/2-24, 85/3-4-7-8-9/1-13, 78/14/2-17-18, per Jamabandi for the year 1976-77 (for short, land in dispute) situated at village Nangal Tehsil Moga; and for perpetual prohibitory injunction to restrain the defendants Virender Singh Adhikari 2013.12.13 11:21 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A. No.1558 of 1989 -2- from interfering in their lawful and peaceful possession over the land in dispute.
Case of the plaintiffs, as spelt out in the body of the plaint, was that the land in dispute was owned by Bakhtawar Singh son of Arjan Singh, who died leaving behind the plaintiffs as his only legal heirs; and they were in possession of the said land even during the life time of Bakhtawar Singh. In fact, Bakhtawar Singh used to live and reside with the plaintiffs, who, happened to be his grandsons and would look after and serve him. Bakhtawar Singh executed a registered Will dated 26.06.1978 in their favour in lieu of the services rendered by them towards him. After Bakhtawar Singh's death, they became owners of the land in dispute but the defendants got mutation of inheritance of Bakhtawar Singh sanctioned in their favour on the basis of a Will dated 06.06.1980, which according to the plaintiffs, was not a validly executed Will and, thus, order passed by the revenue authorities was illegal as Bakhtawar Singh never executed any such Will on 06.06.1980 in favour of the defendants. That Will dated 06.06.1980, according to the plaintiffs, was forged and under the garb of order of mutation, defendants were threatening to dispossess the plaintiffs from the land in dispute and to alienate it.
Plaintiffs' suit was contested by the defendants by filing a written statement, wherein it was stated that plaintiff Lachhman Singh had filed a civil suit against Bakhtawar Singh seeking injunction to restrain said Bakhtawar Singh from interfering in his possession over the land in dispute. The suit, Virender Singh Adhikari 2013.12.13 11:21 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A. No.1558 of 1989 -3- however, was dismissed on 03.04.1982. Plaintiff Lachhman Singh then filed another civil suit which too was dismissed on 03.06.1982. The plaintiffs were neither owners nor in possession of the land in dispute and Bakhtawar Singh did not execute the Will dated 26.06.1978 in favour of the plaintiffs. The Will propounded by the plaintiffs was forged and fraudulent and the plaintiffs were not related to Bakhtawar Singh, who was unmarried and used to reside with his nephews (the defendants) in village Jandwala Bhime Shah, Tehsil Fazilka, who were rendering services to him. He died in their house. They performed his last rites and before his death, said Bakhtawar Singh had executed a registered Will dated 06.06.1980 in their favour and, even otherwise, they were also natural heirs of said Bakhtawar Singh. Mutation was rightly sanctioned in their favour.
From the pleadings of the parties, court of learned Additional Senior Sub Judge, Moga (hereinafter referred to as 'the trial Court') identified following issues:-
"1. Whether Bakhtawar Singh executed a Will in favour of the plaintiffs on 26.6.1978? OPP.
2. Whether the plaintiffs are in possession of the suit property? OPP.
3. Whether Bakhtawar Singh executed a Will in favour of the defendants on 6.6.1980? OPD.
4. What is the effect of previous litigation? OPD.
5. Relief."
After conclusion of evidence of both the sides, learned trial Court Virender Singh Adhikari 2013.12.13 11:21 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A. No.1558 of 1989 -4- heard the parties, appraised the evidence, and held both the Wills, i.e., Will dated 26.06.1978 (Exhibit P-1) and 06.06.1980 (Exhibit D-2) to be validly executed and to be genuine Wills and that the Will dated 26.06.1978 stood revoked on execution of Will dated 06.06.1980 (Exhibit D-2). However, the learned trial Court found the plaintiffs to be in possession of the land in dispute and, therefore, vide judgment and decree dated 10.01.1986, dismissed suit of the plaintiffs for declaration but decreed their suit for permanent injunction and restrained the defendants from dispossessing them from the property in dispute, except in due course of law.
Civil Appeal No.07 of 1986 filed by the plaintiffs to challenge the judgment and decree dated 10.01.1986 was, however, accepted vide judgment and decree dated 17.02.1989 by the court of learned Additional District Judge, Faridkot (hereinafter referred to as 'the First Appellate Court'), and judgment and decree dated 10.01.1986 was modified to the extent that the plaintiffs were held to be owners and in possession of the land in dispute. The First Appellate Court, in fact, held that Will dated 06.06.1980 (Exhibit D-2) was surrounded by suspicious circumstances and, therefore, discarded the same.
Three of the defeated defendants, namely, Mohinder Singh, Malkiat Singh and Darshan Singh, have brought the instant Regular Second Appeal to assail correctness of the judgment and decree dated 17.02.1989 of the First Appellate Court.
Plaintiffs are contesting the appeal.
Virender Singh Adhikari 2013.12.13 11:21 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A. No.1558 of 1989 -5- Though no substantial questions of law have been formulated in the memorandum of appeal but learned counsel for the appellants says that findings recorded by the First Appellate Court are perverse and are based on misreading of evidence and, as such, the appeal involves substantial question of law, i.e., are the findings recorded by the First Appellate Court is perverse?
I have heard learned counsel for the parties and have also perused the record.
It is argued on behalf of the defendants-appellants that judgment and decree dated 17.02.1989 cannot be allowed to sustain because the First Appellate Court has carved out the so called suspicious circumstances from nowhere insofar as it is not the requirement of law that a Will has to be scribed by a Deed Writer only; the finding that there is variation in spacing in between the lines is factually incorrect; the defendants are not shown to have participated in execution of the Will or to have influenced the testator in any manner; execution of Will dated 06.06.1980 (Exhibit D-2) in itself is indicative of revocation of earlier Will dated 26.06.1978 (Exhibit P-1); and the Will dated 06.06.1980 (Exhibit D-2) could not be discarded only because witnesses of this Will happen to be from a village other than the village wherein the property of Bakhtawar Singh was situated. The Learned counsel for the contesting respondents has, however, supported the impugned judgment and decree by reiterating what the First Appellate Court has stated in support of its conclusions.
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Findings recorded by the trial Court that the two Wills dated 26.06.1978 (Exhibit P-1) and 06.06.1980 (Exhibit D-2) have been executed by Bakhtawar Singh, are not in dispute. Even the First Appellate Court has not questioned execution of the two Wills by Bakhtawar Singh. It is also not in dispute that the thumb impressions appearing on the Will dated 06.06.1980 (Exhibit D-2) purporting to be of the testator were put by Bakhtawar Singh and the said Will was attested by the marginal witnesses in accordance with the requirements of Section 63 of the Indian Succession Act. Proof of the Will dated 06.06.1980 (Exhibit D-2) in accordance with the provisions of Section 68 of the Indian Evidence Act has also remained unchallenged. In fact, the First Appellate Court has enumerated following suspicious circumstances as regards the Will dated 06.06.1980 (Exhibit D-2):-
1. It is not scribed by a regular Deed Writer and instead, is shown to have been written by Suresh Kumar, Advocate, DW3 to whom the testator was not personally known;
2. There is variation in the spacing between the lines and no explanation whatsoever has been assigned by the defendants-appellants in that regard;
3. Pallu Ram, DW5 has deposed that defendants-
appellants were present at the time of execution of the Will and their presence cannot be said to be without significance and in all probability they must have exercised influence over the testator to make a disposition in their favour;
4. Even though, the testator was intelligent enough to Virender Singh Adhikari 2013.12.13 11:21 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A. No.1558 of 1989 -7- give reasons for excluding his sisters and sisters' children but in the Will dated 06.06.1980 (Exhibit D-
2), there is no reference to the earlier Will; and
5. The property in dispute is situated in village Nangal, Tehsil Moga and the testator was also a permanent resident of that village but marginal witnesses of the Will dated 06.06.1980 (Exhibit D-2) are not from that village.
It has also been stated by the First Appellate Court that the testator was not personally known to Suresh Kumar, Advocate, scribe of Will dated 06.06.1980 (Exhibit D-2) and Iqbal Singh, a client of Suresh Kumar, Advocate, through whom the testator was introduced to said advocate, might have joined hands with the defendants-appellants in getting the said Will scribed by Suresh Kumar, Advocate.
However, an in-depth study of the facts and circumstances of the case, reveals that the findings recorded by the First Appellate Court to discard the Will dated 06.06.1980 (Exhibit D-2) are not backed by evidence and the circumstances enumerated cannot be said to be suspicious circumstances so as to discard the said Will.
A perusal of the Will dated 06.06.1980 (Exhibit D-2) does not support the findings of the First Appellate Court that there is variation in spacing between the lines to such an extent that a conclusion could be reached that an effort has been made to adjust the thumb impressions already appearing on a blank paper. It is not in dispute that the Will dated 06.06.1980 (Exhibit D- Virender Singh Adhikari 2013.12.13 11:21 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A. No.1558 of 1989 -8-
2) is a registered document. The First Appellate Court has insisted that someone from the office of Sub-Registrar ought to have been examined to bring on record the circumstances under which the Will was registered by the Sub-Registrar but this insistence, in my considered opinion, was totally uncalled for insofar as act of registration of a document by a public authority has to be taken to have been carried out in the ordinary course of business of the office of the Sub-Registrar and without ill will unless contrary is proved. A Division Bench of Lahore High Court in Piara v. Fattu, AIR 1929 Lahore 711, returned the following observations on the effect of registration of a document:
"The registration of a document is a solemn act to be performed in the presence of a competent official appointed to act as a Registrar, whose duty is to attend to the parties during the registration and see that the proper parties are present, are competent to act, and are identified to his satisfaction and all things done before him in his official capacity and verified by his signature will be presumed to be done duly and in order. Therefore, the certificate endorsed on the sale deed by the Registering Officer under Section 60 of Registration Act is a relevant piece of evidence for proving its execution."
Observations made in Piara v. Fattu(supra) have been followed in Subhash Kumar v. Prabhu Dayal-1994 PLJ 443, Daljinder Singh v. Harbans Kaur-2001 (2) CCC 530, Joginder Singh v. Surinder Singh-1997 (Suppl.) CCC 339, and Kartar Kaur v. Bhagwan Kaur-1993 CCC 171.
In Prem Singh & Ors. v. Birbal & Ors., 2006(3) RCR(Civil) 381 it Virender Singh Adhikari 2013.12.13 11:21 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A. No.1558 of 1989 -9- has been held, "There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption."
The plaintiffs have not been able to bring any evidence to show that the Sub-Registrar was either interested in the defendants-appellants or was unfavourably disposed towards plaintiffs-respondents. As has already been noticed in the earlier part of this judgment, thumb impressions of the testator on the Will as also endorsement regarding registration have not been denied. The plaintiffs, thus, have failed to rebut the presumption that the Will, Exhibit D2, is a validly registered document nor have they been able to show law contrary to the cited judgments. It, therefore, emerges that proper parties appeared before the Sub Registrar and certificate of the Sub Registrar is a relevant piece of evidence to prove due execution of the said Will.
Learned counsel representing the respondents has failed to show any law that a Will must be scribed by a regular Deed Writer or that it cannot be scribed by an Advocate. Fact of the matter is that for execution of a Will no procedure has been prescribed in law. In certain circumstances, a Will can be made even orally. There is no prescribed format.
Similarly, it is not the requirement of law that the attesting witness of the Will must be from the village where the testator resides or where the subject matter of the Will is situate. In the case in hand, it has come on record Virender Singh Adhikari 2013.12.13 11:21 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A. No.1558 of 1989 -10- that one of the plaintiffs had dragged the testator to court at least on two occasions and the testator was living with the defendants-appellants in their village. That being so, it should surprise none that the testator chose to have witnesses from the village in which he was putting up at the time of execution of the Will, Exhibit D2.
No doubt DW5-Pallu Ram has stated that one of the defendants/appellants, namely Mohinder Singh was present at the time of execution of the Will but this assertion has been specifically denied by said Mohinder Singh while appearing as DW1. Be that as it may, it is nobody's case that the defendants-appellants influenced execution of the Will by the testator or participated in its execution in any manner. Even the First Appellate Court has stopped short of saying that the defendants-appellants did influence the testator's mind or took active part in execution of the Will (Exhibit D-2). In fact, the First Appellate Court has drawn an inference based on probabilities which are not backed by the evidence available on record.
Non-mentioning of Will dated 26.06.1978 (Exhibit P-1) in the Will dated 06.06.1980 (Exhibit D-2) also cannot be said to be such a suspicious circumstance as to render the Will dated 06.06.1980 (Exhibit D-2) unacceptable, more so, in the face of the evidence available on record to indicate that one of the plaintiffs, namely, Lachhman Singh, was in continuous litigation with the testator and thumb impressions of the testator appearing on the Will and endorsement regarding registration have not been disputed by the Virender Singh Adhikari 2013.12.13 11:21 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A. No.1558 of 1989 -11- plaintiffs-respondents.
As regards the observations of the First Appellate Court that Iqbal Singh, who introduced the testator to scribe Suresh Kumar, Advocate, might have joined hands with the legatees, suffice it to say that it is neither the case pleaded by the plaintiffs-respondents nor there is any evidence to support this observation. It is well settled position of law that decision of the court must abide the pleadings and evidence and the court is not permitted to make out a case beyond the pleadings and evidence available on record. Pleadings and particulars are necessary to enable the court to decide the rights of the parties in the trial. Therefore, the pleadings are of more help to the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that as a rule relief not founded on the pleadings should not be granted. A decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. Therefore, decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found (Per Vide Trojan & Co. v. Nagappa Chettiar, AIR 1953 SC 235, State of Maharashtra v.Hindustan Construction Co. Ltd., (2010) 4 SCC 518 : (2010) 2 SCC (Civ) 207 : AIR 2010 SC 1299, Kalyan Singh Chouhan v. C.P. Joshi [ (2011) 11 SCC 786 : (2011) 4 SCC (Civ) 656 : AIR 2011 SC 1127, A.V.G.P. Virender Singh Adhikari 2013.12.13 11:21 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A. No.1558 of 1989 -12- Chettiar & sons v. T. Palaniswamy Gounder, 2002 (1) Rent Control Reporter 574 and Ajmer Singh v. Chanan Singh & ors.,2005 (1) RCR (Civil) 33).
In view of all what has been stated and discussed above, the circumstances cited by the First Appellate Court to suspect the validity of Will, Exhibit D2, are found to be imaginary and unsustainable in law.
Finding of the trial Court that the plaintiffs-respondents are in possession of the land in dispute is based on entries in the revenue record, viz. Jamabandi for the year 1976-77 (Exhibit P2) and khasra girdawaries, Exhibits P4 and PA and the First Appellate Court has thought it unnecessary to say even a word to support its conclusion how these findings are incorrect and on what basis the defendants-respondents have been held to be in possession of the land in dispute. Issue No. 2 was framed by the trial Court with regard to possession of the plaintiff-respondents over the land in dispute. Needless to say, the First Appellate Court could not reverse the findings recorded by the trial Court on this issue without giving valid reasons for doing so but valid reasons apart, no reason, whatsoever, has been indicated while reversing the findings of the trial Court on issue No. 2. Therefore, findings of the trial Court on this issue also deserve to be restored.
In the result, the question posed herein-above is answered in the affirmative. The judgment and decree dated 17.02.1989 passed by the First Appellate Court are set aside and the judgment and decree dated 10.01.1986 passed by the trial Court are restored.
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In the peculiar facts and circumstances of the case, parties are left to bear their own costs.
Interlocutory application pending, if any, are rendered infructuous and stand disposed of accordingly.
(MAHAVIR S. CHAUHAN) JUDGE 09.12.2013 adhikari Virender Singh Adhikari 2013.12.13 11:21 I attest to the accuracy and integrity of this document High Court Chandigarh