Punjab-Haryana High Court
Sohan Singh And Anr. vs Amrik Singh And Ors. on 10 January, 2005
Equivalent citations: AIR2005P&H176, (2005)140PLR581, AIR 2005 PUNJAB AND HARYANA 176, (2005) 3 CURCC 494, (2005) 2 HINDULR 115, (2005) 2 RECCIVR 325, (2005) 2 PUN LR 581
Author: V.M. Jain
Bench: V.M. Jain
JUDGMENT V.M. Jain, J.
1. This Regular second appeal has been filed by Sohan Singh and Jit Singh alias Ajit Singh, defendants, against the judgments and decrees of the Courts below whereby the suit filed by Bachhi alias Bachan Kaur, plaintiff was decreed by the trial Court and the appeal filed by them (Sohan Singh and Jit Singh alias Ajit Singh) was dismissed by the learned Addl. Distt. Judge.
2. After hearing the learned counsel and perusing the record, in my opinion, there is no merit in this appeal and the same is liable to be dismissed. Bachhi alias Bachan Kaur, plaintiff had filed a suit for declaration that she was owner in possession of 1/8 share in the land i.e. in the estate of Raju deceased and that defendants 1 to 7 were also owners in possession to the extent of 1/8 share each being the natural heirs of Raju deceased according to Hindu Succession Act, 1956. It was alleged that the suit land was previously owned and possessed by Raju, who died issueless and widowless in 1988. It was alleged that he had one real brother namely Bhagwan Singh, who had predeceased him and that the plaintiff was the daughter of said Bhagwan Singh alias Bhana, whereas defendants 1 to 7 were the other sons and daughters of said Bhagwan Singh alias Bhana, while defendants 8 to 13 were sons, daughters and widow of Sadhu Singh, predeceased son of Bhagwan Singh. It was alleged that on the death of Raju, plaintiff and defendants 1 to 7 became joint owners of the suit land to the extent of 1/8 share each being the natural heir of Raju, as per the Hindu Succession Act. It was alleged that defendants 1 to 3 were threatening to dispossess the plaintiff from the suit land and were alleging that there was a Will dated 30-8-1988 in their favour allegedly executed by Raju. It was alleged that in fact, no such Will was executed by Raju in their favour and the alleged Will was illegal and void and that the mutation which had allegedly been sanctioned in favour of defendants 1 to 3 was illegal and void and not binding on the rights of the plaintiff. Only defendants 3 and 4 contested the suit and it was alleged that defendant No. 3 along with defendants 1 and 2 were owners in possession of the suit property on the basis of Will dated 30-8-1988, executed by Raju in their favour. However, the other defendants including defendants 1 and 2 in their separate written statement admitted the claim of the plaintiff in toto.
3. After hearing both sides and perusing the record, learned trial Court decreed the suit of the plaintiff holding that the plaintiff was owner in possession of the 1/8th share in the estate left by Raju deceased and similarly defendants 1 to 7 were owners in possession to the extent of 1/8th share each in the suit land being the natural legal heirs of Raju deceased, according to Hindu Succession Act and that the mutation which was sanctioned in favour of defendants 1 to 3 on the basis of alleged Will dated 30-8-1988 was illegal and void. While coming to this conclusion it was found by the learned trial Court that the defendant No. 3 had failed to prove that Raju had executed any valid Will in favour of defendants 1 to 3 whereas defendants 1 and 2 had already stated that Raju had never executed any Will in their favour. The appeal filed by Sohan Singh and Jit Singh alias Ajit Singh, defendants was dismissed by the learned Addl. Distt. Judge, upholding the findings of the trial Court. Aggrieved against the same, said defendants filed the present Regular Second Appeal in this Court.
4. As Deferred to above, in my opinion, there is no merit in this appeal and the same is liable to be dismissed. While considering the question regarding validity of Will dated 30-8-1988, allegedly executed by Raju deceased in favour of defendants 1 to 3, it was found by the learned Addl. Distt. Judge that the execution of the said Will was not duly proved on the record. It was found that as per the Will Ex. D1, the same was attested by Jarnail Singh and Gurbachan Singh, Numberdar. It was found that Jarnail Singh, one of the attesting witnesses, was not produced in evidence and was given up as having been won over by the plaintiffs whereas the other attesting witness namely Gurbachan Singh, Numberdar had allegedly died before he could be examined even though he had sworn on affidavit on 28-10-1996, Ex. DW 5/A but the same could not be looked into and could not be made the basis for holding the due execution of the Will in question. In my opinion, this finding recorded by the learned Addl. Distt. Judge is perfectly in accordance with law and no fault could be found with the same. Jarnail Singh, One of the attesting witnesses, was not examined by the defendants to prove the due execution of the Will in question by Raju deceased, whereas Gurbachan Singh, Numberdar was also not examined as he had allegedly expired. In my opinion this finding recorded by the learned Addl. Distt. Judge is perfectly in accordance with law and no fault could be found with the same. Jarnail Singh, one of the attesting witnesses was not examined by the defendants to prove the due execution of the Will in question by Raju deceased whereas Gurbachan Singh, Numberdar was also not examined as he had allegedly expired. In my opinion, the learned Addl. Distt. Judge had rightly not placed reliance on the affidavit Ex. DW 5/A, allegedly executed by Gurbachan Singh, Numberdar since the plaintiffs did not have any opportunity to cross-examine Gurbachan Singh and as such on the basis of said affidavit it could not be said that the due execution of the Will in question was proved on the record. Under Section 63 of the Indian Succession Act, 1925, it has been provided that Will shall be attested by two or more witnesses each of whom has seen the Testator sign or affix his mark to the Will and each of the witnesses shall sign the Will in the presence of the Testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary. Under Section 68 of the Indian Evidence Act, 1872, it has been provided that if a document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence. In the present case, as referred to above, none of the attesting witnesses had been examined by the defendants to prove due execution of the Will in question. If one of the attesting witnesses had died during the pendency of the suit, the other attesting witness could be examined to prove the due execution of the Will. As referred to above, Jarnail Singh was still alive but was not examined and was, given up as won over. This is in spite of the fact that diet money in respect of Jarnail Singh was deposited in the Court but still he was not examined and was given up as won over. So far as Gurbachan Singh is concerned, even though diet money qua, him was deposited but before he could be examined as a witness he expired and as such his state-ment could not be recorded. The affidavit sworn by him, in my opinion, would, be of no consequence since admittedly, the plaintiffs did not have a chance to cross-examine Gurbachan Singh and thus the affidavit sworn by him would be neither here nor there and would not help the defendants to prove the due execution of the Will in question. By not examining one of the attesting witnesses, the defendants have failed to comply with the mandatory requirement of Section 68 of the Indian Evidence Act, 1872 and as such the Will in question could not be used as evidence.
5. The authority Surinder Singh v. Anup Singh, 2002 (1) Rec Civ R 207 : (2001 AIHC 4551), relied upon by the learned counsel for the defendants appellants, in my opinion, would be of no help to the defendants. In the reported case, both the attesting witnesses of the Will were examined. However, they refused to support the Will. On the other hand from the evidence of Doctor it was found that the Testator was mentally alert, sound and cautious and was thus in sound and disposing mind. It was also found that where both the witnesses had not supported the Will, in such a case the Court could not be a mute spectator and the Court can look into the whole circumstances of the case and come to the conclusion whether formalities of Section 63 of the Indian Succession Act had been complied with. In the reported case, it was found that the Testator had distributed his property in a very natural and intelligent manner and the Will was scribed in the hospital in the presence of the Doctor and two witnesses. In my opinion, the law laid down in the aforesaid authority would have no application to the facts of the present case, inasmuch as in the present case none of the: attesting witnesses has been examined to prove the due execution of the said Will. Merely by giving up one witness as won over, in my opinion, would not be sufficient to prove the requirement of Section 68 of the Indian Evidence Act.
6. During the pendency of the appeal, the appellants filed an application under Order 41, Rule 27, CPC, read with Section 151, CPC for producing and examining Jarnail Singh as a witness by way of additional evidence. It was alleged in the said application that the non-examination of Jarnail Singh was due to inadvertence and his examination was necessary for just and proper adjudication of the case. In my opinion, there is no merit in this application and the same is liable to be dismissed. As referred to above, the diet money of Jarnail Singh was deposited in the Court. However, he was not examined as a witness. On the other hand, he was specifically given up by the learned counsel for the contesting defendants as won over. Under these circumstances, in my opinion, the defendants appellants now cannot be allowed to examine Jarnail Singh as a witness in this appeal by way of additional evidence, especially when said Jarnail Singh was specifically given up as won over. The allegation the defendants appellants that Jarnail Singh could not be examined due to inadvertence, in my opinion, cannot be accepted once Jarnail Singh had specifically been given up as won over. Accordingly, finding no merit in the application for additional evidence the same is hereby dismissed.
7. Another factor which would go against the defendants appellants with regard to the due execution of the Will in question is that even though the alleged Will was in favour of defendants 1 to 3, yet defendants 1 and 2 filed admission written statement admitting the claim of the plaintiff that no such Will was executed by Raju deceased in favour of defendants 1 to 3. This stand taken by defendants 1 and 2 was against their own interest. However, these defendants still chose to admit the case of the plaintiff that no such Will was executed by Raju deceased in their favour. It was only defendant No. 3 and for the reasons best known to him, defendant No. 4 who had pleaded that the Will was duly executed by Raju deceased in favour of defendants 1 to 3. As referred to above, the due execution of the Will in question is not proved on the record since none of the attesting witnesses was produced to prove the execution of the said Will even though one of the attesting witnesses was alive but he was given up as won over.
8. In view of my detailed discussion above, in my opinion, there is no merit in this appeal. Even otherwise no question of law much less substantial question of law arises for determination in this appeal. Hence the appeal is dismissed.