Punjab-Haryana High Court
Pargat Singh vs Aas Kaur (Died) Through Her L.R. Lakha ... on 27 January, 1997
Equivalent citations: (1997)117PLR182
Author: B. Rai
Bench: B. Rai
JUDGMENT B. Rai, J.
1. This appeal has been preferred by Pargat Singh, minor, through his real mother, Jito, who has no interest adverse to the appellant, and another, against the judgment and decree, dated July 31, 1979 passed by the Additional District Judge, Amritsar, whereby judgment and decree, dated January 24, 1977 passed by the Subordinate Judge, Second Class, Tarn Taran, were affirmed and the appeal preferred by the appellants was dismissed.
2. Facts.
Aas Kaur and Dhanno, real sisters filed a suit against Sukhwinder Singh, Pargat Singh and Sadhu Singh, for possession of land measuring 24 Kanals 14 Marlas situated in the revenue estate of Village Bootwind, fully described in para No. 1 of the plaint. It was pleaded that 74 Kanals 8 Marlas were jointly owned by Sohan Singh and Mohan Singh to the extent of 1/3rd share. Out of this land, Aas Kaur and Dhanno were the owners of 24 Kanals 14 Marlas of land as co-sharers. Sohan Singh died 6/7 years prior to September 26, 1973 when the suit was instituted and on his death, the mutation of inheritance of Sohan Singh was sanctioned in favour of his widow Smt. Ram Kaur. Ram Kaur also died about 2 years before the filing of the suit. Mohan Singh also died. Sohan Singh, Mohan Singh and Ram Kaur died issueless. Aas Kaur and Dhanno being real sisters of Sohan Singh and Mohan Singh inherited the estate left behind by Sohan Singh and Mohan Singh. They became owners thereof. Mutation in their names was also sanctioned. Against that mutation, appeal was filed by the defendants which was dismissed. The defendants took forcible possession of the property in dispute. The defendants alleged that a Will executed by Ram Kaur was in their possession which, according to the plaintiffs, is illegal and forged one. Aas Kaur and Dhanno asked the defendants to deliver possession of the property in dispute, but they refused. Hence, they filed a suit for possession.
3. The defendants filed written statement and contested the suit raising preliminary objection that the suit for possession was liable to be stayed as Pargat Singh had already filed a suit in respect of the same cause of action and that suit for specific Khasra Numbers was not maintainable. It was admitted that Sohan Singh and Mohan Singh being sons of Attar Singh were real brothers and they were owners of the suit land. However, they were never in possession of specific Khasra Numbers. They further pleaded that after the death of Sohan Singh, the land was mutated in the name of Ram Kaur. Mohan Singh in his life time executed a Will in favour of Ram Kaur. Consequently, Ram Kaur became owner in respect of the estate left behind by Sohan Singh and Mohan Singh. Through Sale deed, dated March 4, 1968, Ram Kaur sold 5 Kanals of land in favour of Sukhwinder Singh and Pargat Singh. She also sold 5 Kanals of land in favour of Charan Singh and Sadhu Singh vide Sale Deed, dated December 21, 1970. The defendants pleaded that Ram Kaur executed a Will on November 11, 1970 in favour of Pargat Singh while she was having sound disposing mind. Ram Kaur died. As such, on the basis of the said Will, Pargat Singh became owner of the property in dispute left behind by Ram Kaur. Other allegations were denied.
On the pleadings of the parties, the following preliminary issue was framed:
"Whether the suit is liable to be sayed Under Section 10 CPC ? "
This Issue was decided in favour of the plaintiffs vide order, dated November 12, 1975. Thereafter the following Issues were framed:
(1) Whether the plaintiffs are the owners of the suit land? OPP (2) Whether the suit in the present form is not maintainable ? OPD (3) Whether defendants purchased the land vide registered deeds dated 4.3.68 and 21.12.70 ? OPD (4) Whether Ram Kaur executed valid Will dated 11.11.70 in favour of Pargat Singh ? OPD (5) Relief.
3. Under Issue No. 1, the trial Court found that out of the land inherited by Ram Kaur from her husband, she sold 5 Kanals of land bearing Khasra No. 31/7 and 5 Kanals 2 Marlas of land from Khasra No. 31/6. In this way, entire Khasra No. 31/6 was sold by Ram Kaur to the defendants and out of Khasra No. 31/7, 8 Kanals 5 Marlas of land was sold by her vide Sale Deed, dated December 21, 1970. In this manner, out of Khasra No. 31/7, 3 Kanals of land was left and Aas Kaur and Dhanno were found to be owners of that land and of Khasra Nos. 8/1 and 3/2. In view of the discussion under Issue No. 1, Sohan Singh, Ram Kaur and Mohan Singh were proved to be in possession of Khasra Nos. 31/6, 31/7, 8/1 and 3/2 as joint owners. As such, suit for possession of these Khasra Numbers as beirs of Sohan Singh and Mohan Singh was held to be maintainable. Moreover, it was observed by the trial Court that Issue No. 2 was not contested by the parties. Issue No. 3 was decided in favour of the defendants. Under Issue No. 4, the trial Court recorded the finding that the Will set up by the defendants was not genuine. Accordingly, this Issue was decided in favour of the plaintiffs. Consequently, the suit of the plaintiffs was decreed in their favour for possession of 3 Kanals of land out of Khasra No. 31/7, and for possession of land comprised of Khasra Nos. 31/8 and 31/3/2, leaving the parties to bear their own costs.
4. Pargat Singh and Sadhu Singh defendants feeling aggrieved, preferred an appeal which was dismissed by the learned Additional District Judge, Amritsar, vide his judgment, dated July 31, 1979, as stated in the earlier part of the judgment.
5. Still the defendants were not satisfied and, as such, this second appeal at their instance.
I have heard the learned counsel for the parties and carefully perused the judgments of the Courts below and the record.
6. At the outset, it was pointed out by the learned counsel for the appellants that the trial Court as well as the first appellate Court did not properly appreciate the evidence on record and in that committed an error in the eye of law in partly decreeing the suit of the plaintiff-respondents. According to him, Ram Kaur had executed a valid Will in favour of Pargat Singh while she was in sound deposing mind. That Will was attested by Naranjan Singh, Member Panchayat and Gulzar Singh. Gulzar Singh was examined as PW1 and Naranjan Singh was examined as PW2. It was submitted by the learned counsel that both the attesting witnesses of the Will have consistently stated that Will, dated November 11, 1970 Exhibit D3 was executed by Ram Kaur in favour of Pargat Singh while in sound disposing mind. The Will was read over to Ram Kaur and it was thumb-marked by her in presence of the attesting witnesses after admitting the same to be correct. Gulzar Singh and Niranjan Singh also attested the Will in presence of Ram Kaur. Thus, it was submitted by the learned counsel that the Will Exhibit D3 was duly proved to have been executed by Ram Kaur while in sound disposing mind in favour of Pargat Singh and that Will is quite legal and valid. Therefore, the suit of the plaintiff/appellants should have been decreed in its entirety. There is not much substance in this contention. It is well settled that apart from proving due execution of a Will, the propounder of the Will is under an obligation to dispel all the suspicious circumstances, in which it may be shrouded, but in the instant case both the Courts below have candidly recorded a finding that the Will is shrouded in suspicious circumstances which have not been dispelled and, as such, the same is not a genuine Will. It is pertinent to note that the Will purports to have been scribed by Diwan Chand Scribe but Diwan Chand Scribe was not examined by the defendants. He was examined by the plaintiffs as PW 4. It was noticed by both the Courts below that Pargat Singh had filed a Civil Writ No. 450 on June 11, 1971 for declaration against Aas Kaur and Dhanno and four others. The certified copy of the plaint is Exhibit P1. In Para 5 of this plaint, it was mentioned that Ram Kaur had died on 16 Phalgun 1971 which correspondingly comes to March 7, 1971. The Will Exhibit D3 is alleged to have been executed by Ram Kaur on November 11, 1970. It was stated by Niranjan Singh (DW 6) that Ram Kaur died 10/12 days after execution of the Will while in Civil Suit No. 450 titled as 'Pargat Singh v. Aas Kaur and Ors.', he stated that Ram Kaur died 3 months after execution of the Will while according to Surjit Kaur (DW7), Ram Kaur had died in the month of Phalgun. Gulzar Singh was examined as DW5. In cross-examination, it was stated by him that Ram Kaur died 8/10 days after the execution of the Will, while in his previous statement Exhibit P5 recorded in Civil Suit No. 450, it was stated by him that Ram Kaur had died 2/4 days after the execution of the Will. Surjit Kaur (DW7) stated that Ram Kaur had died in the month of Phalgun. The witness are at variance in respect of the date of death of Ram Kaur and the date of execution of the Will alleged to have been executed on November 11, 1970. The execution of the Will Exhibit D8 by Ram Kaur as alleged by the defendants makes it a highly suspicious document. The Will in question is not a registered document. Though it is not the requirement of law that the Will must always be registered on the option of a party. However, if a Will is registered, it adds to its authenticity. The Will in question was allegedly executed at Tarn Taran where office of Sub-Registrar of Documents is located. No doubt the witnesses have stated that on the date the Will was executed it has grown dark. Nothing has been brought on the record to show that some attempt was made to get the Will registered on the next day or on any other day during the life time of Ram Kaur. The learned trial Subordinate Judge has rightly observed that in case on the date of execution of the Will it had grown dark, there was no hurdle or impediment in the way of Ram Kaur to get the Will registered. No doubt in the Will it is recorded that Pargat Singh is the son of brother in-law (Dewar) of Ram Kaur, but there is no evidence to show as to how and in what manner Sadha Singh father of Pargat Singh was Dewar of Ram Kaur and consequently Pargat Singh was related to her. Admittedly, Aas Kaur and Dhanno were the real sisters of Mohan Singh and Sohan Singh husband of Ram Kaur. No reason has been given in the Will as to why Aas Kaur and Dhanno who happened to be the close relatives of Ram Kaur were deprived of the property and preferred to execute the Will in favour of Pargat Singh. It was observed by the learned Additional District Judge that if Surjit Kaur mother of Pargat Singh had rendered services to Ram Kaur, then in all probability Ram Kaur was expected to execute the ill in her favour and not in favour of her son. It is another circumstance which further deepens the shadows of suspicion which, renders the Will a suspicious document. Not only this, it was stated by Gulzar Singh that before the Will was scribed, rough draft of the Will was not prepared but in the cross-examination it was stated by him that rough draft of the Will was prepared but it was destroyed. Exhibit P5 is the statement made by Gulzar Singh in Civil Suit No. 450 filed by Pargat Singh with which he was duly confronted, in which it was stated by him that a rough draft of the Will was prepared but he displayed his ignorance if that rough draft was later on destroyed, or not. It was observed by the lower appellate Court that it goes to show that the wit nesses are not truthful witnesses and that their statements were rightly not relied upon by the learned Subordinate Judge. A perusal of the judgment of the Subordinate Judge would show that he has discussed certain in-consistencies in the statements made by Gulzar Singh as well as in the other case (Civil-Suit No. 450) with which he was duly confronted and that goes to show that Gulzar Singh is not a truthful witness; and it was observed that the trial Court has rightly concluded that the Will Exhibit D3 is not a genuine document. The Will Exhibit D3 is alleged to have been scribed by Diwan Chand Scribe. When he was examined by the Plaintiffs as their own witness, he stated that on November 11, 1970 he was called by Gulzar Singh Sarpanch and Niranjan Singh at about 8/9 p.m. in a Bunga in the Nurdo Bazarg where they showed him a lady of the name of Ram Kaur. After six months of the writing of the Will, the same lady met Diwan Chand in Chowk Lala Sardari Lal Bajaj, Tarn Taran, near Darbar Sahib which clearly goes to show that Ram Kaur who got the Will scribed from him met him after six months of the execution of the Will. According to Gulzar Singh (DW5) and Niranjan Singh (DW6) who claim to be the attesting witness of the Will and Surjit Kaur (DW7) have given different dates of death of Ram Kaur. From their statements, it is made out that Ram Kaur had died after a few days or within a few months after the execution of the Will, but according to Diwan Chand Scribe the lady; who was introduced to him/as Ram Kaur and got the Will scribed from him had met him in Chowk Lala Sardari Lal Bajaj, Tarn Taran, near Darbar Sahib after six months of the execution of the Will. That goes to show that the lady who met Diwan Chand-and got the Will scribed was not Ram Kaur wife of Sohan Singh. It is another circumstance which further makes the Will a suspicious document. The Will Exhibit D3 purports to have been thumb-marked by Ram Kaur. If the Will was, in fact, executed by Ram Kaur in favour of Pargat Singh, there could be no difficulty with the defendants to get that thumb impression compared with some admitted or proved thumb impressions of Ram Kaur, but no step in that direction was taken by the defendants. From this, it may be inferred that if the defendants were to adopt that course, the Will was likely to be proved as not thumb-marked by Ram Kaur wife of Sohan Singh alleged executant of the Will. It was observed by the first appellate Court that during the course of arguments the learned counsel for the appellants could not create any dent in the findings recorded by the learned trial Court and that no other evidence was pointed out which could have some persuasive force to reverse the findings recorded by the trial Court. The position of the learned counsel for the appellants before this Court is also the same. I am of the view that the concurrent findings recorded by both the Courts below are well founded and do not call for any interference.
7. Lastly, it was argued by the learned counsel for the appellants that before the first appellate Court on January 23, 1979, Dhanno, one of the respondents had made an application admitting the execution of the Will by Ram Kaur in favour of Pargat Singh. On this application, the statement of Dhanno was recorded on oath by the learned Additional District Judge, but no reference in that regard was made in the judgment of the first appellate Court. As the statement made by Dhanno on January 23, 1979 was not referred to in the judgment of the first appellate Court, no ground to that effect was taken and it was urged that now statement be taken into consideration and in the light of that statement, Pargat Singh should have been held to be entitled at least to share of the suit property. There is no force in this contention. A perusal of the application and statement dated January 23, 1979 would show that these purport to have been thumb marked by Dhanno but there is nothing to show that Dhanno was identified by any Advocate or any other respectable person. Even at the time when this application was presented, counsel for either of the parties was not present who could identify her as Dhanno respondent No. 2. Even at the time when her statement was recorded, the counsel for the respondents was not present and said Dhanno was not identified to be respondent No. 2 before the first appellate Court. A perusal of order sheet reveals that on December 20, 1978 appeal was adjourned to February 7, 1979 for arguments and on February 7, 1979 it was adjourned to February 21, 1979 for arguments. During the pendency of this appeal, Civil Miscellaneous No. 680-C of 1992 was filed under Order 22, Rule 3 of the Code of Civil Procedure read with Section 151 of the Code on February 9, 1992, wherein it was mentioned that Dhanno had died on December 12, 1991. On February 21, 1979 the appeal was not listed for arguments and it was adjourned to April 16, 1979. On April 16, 1979 an application was made by Aas Kaur through General Attorney Lakha Singh, whereby genuineness of application purported to have been filed by Dhanno was challenged and it was specifically stated that Dhanno, in fact, had not made any such application or statement and that some impostor had been set up in the name of Dhanno to make such an application and statement. It was further pleaded that the so called rights accruing to the appellants on the basis of such agreement cannot defeat the rights of the applicant. The property was stated to be ancestral and that Aas Kaur had never consented to any such compromise which is contrary to law, but no reply to this application was field by the appellants before the lower appellate Court. If the application and the statement recorded on January 23, 1979 were, in fact, made by Dhanno respondent No. 2, there could be no difficulty with the defendants to bring her before the Court at least after the filing of the application, dated April 16, 1979 by Aas Kaur through Lakha Singh, General Attorney to show that she made the application and statement voluntarily and that, in fact, that statement was made by her in favour of Pargat Singh.
8. In the circumstances of the case, the statement dated January 23, 1979 allegedly made by Dhanno respondent No. 2 does not in any way advance the case of the appellants. C.M. is dismissed.
9. For the reasons stated above, the appeal being without merit is dismissed. Parties to bear their own costs.