Punjab-Haryana High Court
(O&M;) Kapoor Singh And Ors vs Harbhajan Singh And Ors on 18 March, 2019
Author: Amit Rawal
Bench: Amit Rawal
RSA-1719-1988 (O&M) 1
415
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-1719-1988 (O&M)
Date of decision : 18.03.2019
Kapur Singh and another
... Appellants
Versus
Harbhajan Singh and others
... Respondents
CORAM: HON'BLE MR. JUSTICE AMIT RAWAL
Present: Mr. O.P. Goyal, Senior Advocate with
Mr. Piyush Aggarwal, Advocate
for the appellants.
Mr. Sanjiv Gupta, Advocate and
Ms. Deepali Puri, Advocate and
Ms. Suman Devi, Advocate
for respondent No.1.
****
AMIT RAWAL, J.
The present regular second appeal is directed against the judgment and decree of the lower Appellate Court, whereby the suit of the appellants-plaintiffs seeking declaration as well as permanent injunction, decreed, by the trial Court, has been dismissed.
The appellants-plaintiffs along with defendant No.10 claimed declaration to the effect that on the basis of the registered Will dated 06.11.1981, executed by Acchra Singh son of Nihal Singh, were owners in equal share and in exclusive possession of land measuring 36 kanals 2 marlas. Challenge was also laid to the order dated 14.12.1982, of the Assistant Collector, sanctioning the mutation of inheritance in favour of 1 of 7 ::: Downloaded on - 15-04-2019 06:17:08 ::: RSA-1719-1988 (O&M) 2 defendant Nos.1 to 9. Acchra Singh was owner in possession of the suit land and one house in the same village. He was unmarried and without any issue, died on 21.11.1981 at Village Birmi Tehsil and District Ludhiana. He had very cordial relations with Sher Singh, father of the plaintiffs and defendant No.10. The plaintiffs and defendants used to treat Acchra Singh, their uncle and had been serving Acchra Singh, during his life-time. While in sound disposing mind, bequeathed the property by way of Will. However, defendant No.1, after death of Acchra Singh, fabricated the Will dated 08.11.1981 and filed a suit for permanent injunction, which was dismissed by the trial Court on 03.06.1982. Defendant Nos.1 to 9 extended threats and therefore, a cause of action accrued to file the suit.
Defendant No.1 opposed the suit by raising all preliminary objections, did not deny that Acchra Singh was the owner of the suit property, but disputed the execution of the Will in favour of the plaintiffs or Sher Singh, father of the plaintiffs and defendant No.10 and was having cordial relationship with him, being an attempt to grab his estate.
Since the parties were at variance, the trial Court framed the following issues:-
1. Whether Acchra Singh executed valid Will dated 6.11.1981 in favour of the plaintiff and defendant No.10? OPP
2. Whether Acchra Singh deceased executed Will dated 08.11.1981 in favour of defendant No.1? OPD
3. Whether the suit is not maintainable in the present form? OPD
4. Whether the plaintiffs are entitled to the declaration and injunction prayed for? OPP
5. Whether any of the parties is entitled to special costs? (P. Parties).
6. Relief.
2 of 7 ::: Downloaded on - 15-04-2019 06:17:09 ::: RSA-1719-1988 (O&M) 3 The plaintiffs in support of the aforementioned pleadings examined three witnesses and brought on record various documents, whereas the defendants examined four witnesses and brought on record Ex.D1 to Ex.D5.
The trial court while discarding the Will of the defendants, accepted the Will of the plaintiff and decreed the suit, but the lower Appellate Court in appeal reversed the findings of the trial Court.
Mr. O.P. Goyal, learned Senior Counsel assisted by Mr. Piyush Aggarwal, learned counsel appearing on behalf of the appellants submitted that the registered Will propounded by the plaintiffs was proved through the attesting witnesses PW2-Harcharan Singh and PW3-Nirmal Singh. Harcharan Singh stated that he belonged to Village Birni and testator was known to him. The lower Appellate Court erroneously held defendant No.1 to be legal heir as no evidence in terms of the provisions of Section 50 of the Indian Evidence was led. Neither any ration card nor voter list seen the light of day. There were hardly suspicious circumstances as bequeathing of Will is always a deviation from the line of natural succession, even the father of the plaintiff, Sher Singh, was living abroad, but the fact of the matter is that children rendered the services to the deceased. It is not necessary that a person/beneficiary of the Will has to be a relative. There was no necessity to prove the receipts of the Hospital and transmission of money from abroad, for, the testimonies of the aforementioned attesting witnesses was as per the provisions of Section 63(c) of the Indian Succession Act. In the absence of the evidence under Section 50 of the Indian Evidence Act, the defendants had not been able to prove the children of the deceased (testator), thus, there is abdication.
3 of 7 ::: Downloaded on - 15-04-2019 06:17:09 ::: RSA-1719-1988 (O&M) 4 Per contra, Mr. Sanjiv Gupta and Ms. Deepali Puri, learned counsel appearing on behalf of the respondents-defendants submitted that no doubt, the plaintiffs relied upon the registered Will, it is not necessary that it may also suffer from suspicious circumstances. Sher Singh was living abroad and in such circumstances, cannot be said that that the testator Acchra Singh had good relation with him, therefore, the question of rendering the services by appellants did not arise. Acchra Singh was not related to the plaintiffs and therefore, there was strong suspicious surrounding in the Will. No issue, regarding the Will, was framed, but the lower Appellate Court can always determine point of determination as per the provisions of Order 41 Rule 31 of the Code of Civil Procedure. The suspicious circumstances, noticed by the lower Appellate Court had not been fully dispelled, for, no bill of treatment or receipts of the Hospital regarding extension of treatment suffered by the plaintiffs had been brought on record. DW3, Ram Singh, stated that he typed the Will dated 08.11.1988 (propounded by the defendants) and it was scribed by Tara Singh, deed writer. The other marginal witness Surjit Singh, even if, not examined, there is compliance of Section 68 of the Indian Evidence Act. It was further submitted that even if, the lower Appellate Court had belied the Will propounded by the defendants, this Court can always look into the matter by exercising the powers under Order 41 Rule 33 of the Code of Civil Procedure, thus, urges this Court for dismissal of the present regular second appeal.
I have heard learned counsel for the parties, appraised the paper book and of the view that the following 'Substantial Questions of Law' arise for determination:-
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1. Whether defendant Nosd.1 to 9 have been able to prove the relationship being children of sister of deceased Acchra Singh or not?
2.Whether the judgment and decree of the lower Appellate Court, discarding the registered Will dated 06.11.1981, propounded by the plaintiffs, suffers from illegality and perversity.
The provisions of Section 50 of the Indian Evidence Act empower the party to lead the evidence in support of the relationship between the person, who is no longer in this world. For the sake of brevity, the same reads as under:-
''Section 50 in The Indian Evidence Act, 1872
50. Opinion on relationship, when relevant.--When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).'' The defendants alleged themselves to be children of sister of Acchra Singh. Except the Will dated 08.11.1981, which has been discarded by the lower Appellate Court, no other independent evidence like any relative of the family, to whom, derived the interest nor any voter list and ration card, had been brought on record. If at all, they were rendering the services, they could have placed on record many material evidence to 5 of 7 ::: Downloaded on - 15-04-2019 06:17:09 ::: RSA-1719-1988 (O&M) 6 establish the same. Even the persons from the vicinity could be of a assistance. On the other hand, both Harcharan Singh and Nirmal Singh, in their evidence, stated that they had seen the testator in signing the Will and also appended their signatures on his asking. This is the requirement of law as per the provisions of sub-Section (c) of Section 63 of the Indian Succession Act. The same reads as under:-
''Section 63 (c) of the Indian Succession Act, 1925
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; 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.'' It is not necessary that the beneficiary of the Will has to be relative. The execution of the Will can be deviation and non-deviation from the line of succession. Since it is a matter of record that Acchra Singh died without any wife and issueless, the question arises whether the defendants, in the absence of the Will, can be accepted as legal representative or not?
The answer would be 'No', as the lower Appellate Court had not assigned any reason how and under what manner, the defendants have been able to establish their relationship. Harcharan Singh, PW2, in evidence, stated that the father of the plaintiffs, namely, Sher Singh had very cordial relationship with the testator. It is not necessary that the person has to be stationed in India. There are many friends, who live abroad and maintain 6 of 7 ::: Downloaded on - 15-04-2019 06:17:09 ::: RSA-1719-1988 (O&M) 7 good relations. Kishna Devi, the Manager of State Bank of India, produced the account opening form, passbook and the specimen thumb-impressions of Acchra Singh and stated that Acchra Singh opened his saving bank account on 24.04.1979. It is a matter of record that an offer was also made to the Court, on behalf of the plaintiffs, for examination of the thumb-impressions on the Will, compared with the admitted signatures of the deceased, but the defendants did not accept the same. This is all more reasons to belie their claim.
In view of what has been noticed above, the judgment and decree of the lower Appellate Court is not sustainable in the eyes of law and the same is hereby set aside and that of the trial Court is restored. The substantial questions of law as framed above are answered in favour of the appellants-plaintiffs and against the defendants. Resultantly, the second appeal is allowed.
20.03.2019 ( AMIT RAWAL )
Yogesh Sharma
JUDGE
Whether speaking/reasoned Yes/ No
Whether Reportable Yes/ No
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