RSA No.201 of 1983 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.201 of 1983 Date of decision 27.07.2010. Smt.Gurdip Kaur ...... Appellant. versus Sawinder Singh and others. ...... Respondents. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. Jagmohan Singh Chaudhary, Senior Advocate with Mr. L.S.Virk, Advocate for the appellant. Mr. J.R.Mittal, Senior Advocate with Mr. Kashmir Singh, Advocate for respondent No.1. Mr. G.S.Bhatia, Advocate . K.C.PURI, J. This is a regular second appeal directed by defendant-appellant against the judgment dated 20.12.1982 passed by Shri K.C.Diwan, learned Additional District Judge, Amritsar vide which the appeal preferred by the plaintiffs against the judgment dated 27.12.1978 passed by Mr. L.R.Roojam, Sub Judge Ist Class, Ajnala dismissing the suit of the plaintiffs, stood accepted. Shorn off unnecessary details, the case of the plaintiffs as set RSA No.201 of 1983 2 forth in the plaint is that Sawinder Singh, Gurbachan Singh and Harbans Kaur filed civil suit for declaration to the effect that they were the owners in possession of the land, measuring 149 k 17 m described in detail in the heading of the plaint and for consequential relief of permanent injunction restraining the defendants from interfering into the lawful and peaceful possession of the plaintiffs of the suit land. It has been pleaded by the plaintiffs that Makhan Singh son of Kushan Singh resident of village Ramdas was the owner of the suit land died on 5.12.1974. Makhan Singh had neither any wife nor any children. The plaintiffs pleaded that during the illness of said Makhan Singh and even before, the plaintiffs served him in view of the fact that plaintiffs no. 1 and 2 were his nephews while plaintiff No.3 was the wife of plaintiff No. 2. It was alleged that pleased with the services rendered by the plaintiffs, Makhan Singh deceased, executed two valid Wills on 26.11.1974 and 4.12.1974 in favour of the plaintiffs, while in sound disposing mind and in proper senses and by virtue of the said Wills, the plaintiffs became the owners of the entire estate left by Makhan Singh, deceased. It was averred that in the life time of Makhan Singh, he was served by the plaintiffs and even after his death also, all the ceremonies in connection with his death were performed by the plaintiffs. The plaintiffs alleged that during the life time of Makhan Singh, they were in cultivating possession of the suit land as tenants and some of his land was leased out to the plaintiffs by him and as such the plaintiffs were in possession of whole land of deceased-Makhan Singh alongwith his other property. Even on 4.12.1974 when Makhan Singh made the second Will in favour of the plaintiffs he had withdrawn a RSA No.201 of 1983 3 sum of Rs.3495/- from his post office savings bank account at Ramdas and handed over the said amount to the plaintiffs alongwith the passbook of the post office, for spending the same on his illness etc. The plaintiffs further asserted about the validity and correctness of the two Wills propounded by them. The defendant had alleged that she was the owner of the whole property left by Makhan Singh, deceased because of the Will dated 31.3.1971 executed by Makhan Singh in her favour. The factum and correctness of the said Will were denied and it was alleged that even if there was any such Will, the subsequent Wills dated 26.11.1974 and 4.12.1974 cancelled the same and in the said two Wills Makhan Singh had specifically mentioned that defendant was his pichhlag daughter from his first wife. It was further alleged that Wills dated 26.11.1974 and 4.12.1974 were made by Makhan Singh in his sound disposing mind and of his free consent. Mutation was however, sanctioned in favour of the defendant and the plaintiffs alleged the said sanction as wrong and inoperative. The suit was resisted by the defendant Gurdip Kaur. In her written statement, she took preliminary objections that the plaintiffs were not in possession of the land in suit or any part of it and as such, the suit was not maintainable in the present form. It was admitted that Makhan Singh was the owner of the suit land but it was denied that he died on 5.12.1974. It was pleaded that he died on 4.12.1974. the defendant alleged herself to be the daughter of said Makhan Singh. It was denied that the plaintiffs served the deceased Makhan Singh. She also denied the relationship of the plaintiffs with Makhan Singh deceased as alleged in the plaint. It was averred in the written statement that the defendant being the RSA No.201 of 1983 4 daughter of Makhan Singh used to serve him. The factum, the execution and validity of the Will propounded by the plaintiffs were denied. It was alleged that Makhan Singh, deceased, was very ill and was not in his senses before his death. It was pleaded that Makhan Singh after the year 1971 grew old and feeble and was lonely and the plaintiffs by exerting undue influence, may have procured the Will under that influence. The Wills propounded by the plaintiffs were alleged to be most unnatural and unconscionable. The defendant propounded a Will dated 31.1.1971 in her favour validly executed by Makhan Singh and got registered. The learned trial Court framed the following issues:- 1. Whether Makhan Singh, deceased, executed a valid Will in favour of the plaintiffs on 4.12.1974? OPP. 2. Whether Makhan Singh, deceased, executed a valid Will on 31.1.1971 in favour of defendant. If so, its effect? OPD 3. Whether defendant is daughter of Makhan Singh? If so to what effect? OPD 4. Whether the plaintiffs are in possession of the suit land? OPP 5. If issue No. 4 is not proved, whether the present suit is maintainable in the present from? OPP 6. Whether the plaintiff is entitled to the injunction prayed for? 7. Relief. The parties have led their respective evidence on the aforesaid issues and after appreciating the same and hearing the learned counsel for RSA No.201 of 1983 5 the parties, the trial Court dismissed the suit of the plaintiffs. Feeling dissatisfied with the judgment dated 27.12.1978, the plaintiffs preferred appeal before the First Appellate Court. The said appeal was allowed by learned District Judge, Amritsar vide judgment dated 20.12.1982 and the suit of the plaintiffs stood decreed. Feeling dissatisfied with the judgment dated 20.12.1982, the defendant-appellant has preferred the present regular second appeal. I have heard learned counsel for the parties and have gone through the records of the case. From the submissions made by both the sides, following substantial questions of law have arisen : - 1. Whether the judgment of the First Appellate Court suffer from perversity inasmuch the First Appellate Court has misinterpreted the evidence in respect of Wills dated 26.11.1974 and 4.12.1974 alleged to be executed by Makhan Singh ? 2. Whether the judgment of the First Appellate Court suffers from perversity in respect of misinterpreting and misreading in respect of relationship of Gurdip Kaur and Makhan Singh as pichhlag daughter ? The learned counsel for the appellant has submitted that the trial Court has given a well reasoned judgment holding that Wills dated 26.11.1974 and 4.12.1974 were not proved and that these documents are surrounded by suspicious circumstances. It is contended that the detailed reasoning for discarding Wills dated 26.11.1974 and 4.12.1974 are given in para Nos.11 to 15 of the judgment. The reasoning given by the trial Court, in these paras have not been met with by the First Appellate Court. The RSA No.201 of 1983 6 First Appellate Court has even misread and misinterpreted the evidence on the file, while returning the finding that the said two Wills stood proved. The First Appellate Court has also misread and misinterpreted the evidence regarding the relationship of Gurdip Kaur with Makhan Singh. It is contended that both the Courts below have given a concurrent finding that registered Will dated 31.3.1971 stands proved and further held that the plaintiffs have admitted that document. There is a clear cut recital in the Will dated 31.3.1971 that Gurdip Kaur now appellant is his daughter. The First Appellate Court has also ignored the evidence of other witnesses, who have special knowledge under Section 50 of the Indian Evidence Act regarding relationship of Gurdip Kaur with Makhan Singh as daughter and not pichhlag daughter. It is further contended that the First Appellate Court has wrongly held that the evidence produced before the mutation proceedings in respect of the Will cannot be taken into account that the said finding is factually incorrect. Those statements of the witnesses were not recorded in the mutation proceedings but in respect of the registration of both the Wills dated 26.11.11974 and 4.12.1974, the said evidence has been ignored giving wrong reasoning, that evidence produced before the mutation proceedings, is not to be taken into account. The reliance of the plaintiff is upon the registration of Will dated 4.12.1974. So, the proceedings conducted before that Sub Registrar, while registering the Will is a relevant piece of evidence. It has been ignored by the First Appellate Court on flimsy grounds. It is further contended that no reasoning have been given by the plaintiff for executing second Will during the span of one week i.e. between 26.11.1974 and 4.12.1974. Makhan Singh died RSA No.201 of 1983 7 intervening night of 4.12.1974-5.12.1974. It is further submitted that according to the witnesses produced by the plaintiff they went to the office of Sub Registrar on 26.11.1974 for registration of the Will. Makhan Singh knew the importance of registration of Will and in case he would have actually executed the Will on 26.11.1974 and 4.12.1974 and in that case he must have got registered the same. Through both these Wills, the registered Will dated 31.3.1971 has been cancelled. The witnesses produced by the plaintiffs are highly discrepant regarding not registering Will on 26.11.1974. One of the witnesses has stated that the Sub Registrar was not present whereas the other witness has stated that Sub Registrar has shown inability to register the Will as he has to go to Jail. No reasoning has been given for not registering the Will on 26.11.1974 to 4.12.1974. The reasoning given by the First Appellate Court for executing two Wills is imaginary. The First Appellate Court has stated that two Wills were executed by the deceased to make doubly sure that his enheritance would go according to his wish. That reasoning given by the First Appellate Court does not appeal to the prudent mind. The deed writer register has not been produced to prove that Will dated 26.11.1974 was actually executed on the same day. It is further contended that from the Will dated 26.11.1974, it is revealed that the last lines of that Will have been narrowed down to adjust the thumb impression of Makhan Singh. The other detailed reasoning given by the trial Court in paragraphs No.11 to 15 have not been duly met with by the First Appellate Court. So, in these circumstances, the First Appellate Court has misread and misinterpreted the evidence regarding the Wills dated 24.11.1974 and 4.12.1974 and regarding the relationship of Gurdip Kaur RSA No.201 of 1983 8 with deceased Makhan Singh as his daughter. The beneficiary has taken active part in the occurrence which makes the unregistered Will suspicious. The plaintiffs have themselves admitted that Makhan Singh was living separately and as such there was no occasion for Makhan Singh for executing the Will in favour of plaintiffs. The evidence regarding conducting last ceremony has been manipulated just to create evidence for the decision of the case in order to grab the property of Makhan Singh. Learned counsel for the appellant in support of his submissions has relied upon the following authorities : - (1) H.Venkatachala Iyengar vs. B.N.Thimmajamma and others AIR 1959 Supreme Court 443 ; 2. Smt.Jaswant Kaur vs. Smt. Amrit Kaur and others AIR 1977 Supreme Court 74 ; 3. Balbir Singh vs. Kashmir Singh and others 2004(3) P.L.R. 35 ; 4. Ram Piari vs. Bhagwant and others AIR 1990 Supreme Court 1742 ; 5. Satya Pal Gopal Das vs. Smt.Panchubala Dasi and others AIR 1985 Supreme Court 500 ; 6. Ajit Singh vs. Madha Singh (1971) 2 I.L.R. 246 (Punjab and Haryana ) ; 7. Inderjit Kaur alias Jagir Kaur vs. Bhag Singh 2000(2) Civil Court Cases 13 (P&H ) ; 8. Sat Pal Singh vs. Smt. Harminder Kaur 1992 Civil Court Cases 390 (P& H) ; 9. Kashibai & Anr. vs. Parwatibai & Ors. 1995(2) Civil Court Cases RSA No.201 of 1983 9 717 (S.C.) ; 10. Smt. Guro vs. Atma Singh 1992 Civil Court Cases 329 (S.C.) and 11. Hardev Singh vs. Gurmail Singh (Dead) by L.Rs. 2007(1) RCR (Civil) 876. The counsel for the plaintiff now respondents has supported the judgment of the First Appellate Court. It is submitted that Wills dated 26.11.1974 and 4.12.1974 stand proved by examining marginal witnesses. The mere fact that scribe of Will dated 26.11.1974 has not been examined, does not establish that the Will is suspicious. All the last rites were performed by the plaintiffs. Gurdip Kaur was a married lady living in a separate village. After the execution of the Will dated 31.3.1971, she has not cared for Makhan Singh, which forced him to change his view regarding his inheritance. Mere fact that Makhan Singh died on the intervening night of 4.12.1974 and 5.12.1974 does not make it a suspicious document. Mere taking part by the beneficiary does not make it a suspicious document. Makhan Singh deceased was being looked after by the plaintiffs and both Wills were executed to give reward of the services rendered by the plaintiff to Makhan Singh during his life time. However, the fact remains that last Will has to be prevailed. The First Appellate Court has rightly held that even to pichhlag daughter some time daughter is mentioned. So, recital in Will dated 31.3.1974 describing Gurdip Kaur as daughter does not prove her relationship with Makhan Singh. The First Appellate Court has rightly held that Gurdip Kaur is the pichhlag daughter of Makhan Singh. The First Appellate Court has rightly held that no evidence having the special knowledge under Section 50 of the Evidence RSA No.201 of 1983 10 Act has been produced proving the relationship of Gurdip Kaur with Makhan Singh. The Will is executed twice. No doubt, although the relationship of Gurdip Kaur with Makhan Singh as that of a daughter is strongly denied, but even if the said relationship is proved, genuinely, the Will is always executed to deprive the legal heirs from the natural succession. So, on that account also the said Wills dated 26.11.1974 and 4.12.1974 stand fully proved and Will prevail. The Will is not a compulsorily registrable document. The First Appellate Court has rightly held that two Wills were executed by Makhan Singh to be doubly assured that the property must go to the beneficiary. The learned counsel for the respondents has relied upon the following authoritative pronouncements in support of his contention :- 1. Sridevi vs. Jayaraja Shetty 2005(2) S.C.C. 784 ; 2. Sundhri (Dead) through Lrs. vs. Lala Ram (Dead) through LRs. 2005 (2) P.L.R. 493; 3. Mst. Sugani vs. Rameshwar Das & Anr. 2006(4) R.C.R. (Civil) 319 ; 4. Pentakota Satyanarayana & Ors. vs. Pentakota Seetharatnam & Ors. 2005(8) S.C.C. 67 ; 5. Amar Kaur vs. Paramjit Kaur 2003(3) Civil C.C. 645 ; 6. Joginder Singh alias Rajinder Singh vs. Dharuv Singh 2003(3) P.L.R. 545 ; 7. Madhukar D. Shende vs. Tarabai Aba Shedage 2002 (1) R.C.R. (Civil) 724 ; 8. Ramabai Padamkar Patil (D) through Lrs. And others vs. Rukminibai Vishnu Vekhande 2003(3) Civil Court Cases 592 RSA No.201 of 1983 11 9. Tirath Singh vs. Sajjan Singh 1997(2) Civil Court Cases 299 (P&H) ; 10. Chanchal Singh vs. Rattan Kaur (Deceased) through L.R's Charan Singh and others 1988 Civil Court Cases 447 (P&H) ; & 11. Jagsir Singh and another vs. Punjab Kaur and others 1989 Civil Court Cases 347 (P&H) ; I have given my thoughtful consideration to the rival submissions made by both the learned counsel for the parties and have gone through the records of the case. The Will is a secret document, which takes effect after the death of the executor. The testator is not alive to state whether the Will is a genuine document or not. In the present case, the defendant has alleged registered Will dated 31.3.1971 in her favour whereas the plaintiffs have alleged unregistered Wills dated 26.11.1974 and 4.12.1974 in their favour. Death of Makhan Singh has admittedly taken place on the intervening night of 4-12-1974 to 5-12-1974. Both the latter unregistered Wills are in favour of plaintiff/respondents. So far as the execution of Will dated 31.3.1971 is concerned, there is concurrent finding of fact of both the Courts below that Will dated 31.3.1971 executed by Makhan Singh in favour of the present appellant Gurdip Kaur. Otherwise also, the execution of the Will has been admitted by the plaintiff/respondents inasmuch as they have pleaded that the said Will was revoked by two unregistered Wills dated 26.11.1974 and 4.12.1974. The Will dated 31.3.1971, which is an admitted and proved document is a registered Will whereas the other two Wills are unregistered. Otherwise RSA No.201 of 1983 12 also, the registration of Will itself dispel the minor suspicious circumstances, if any. Regarding registration of Will dated 26.11.1974, the witnesses of the plaintiffs are discrepant, as observed by the trial Court. One of the marginal witnesses of the Will dated 26.11.1974 has stated that they went to the office of Sub Registrar but Sub Registrar had to go to Jail whereas the other marginal witness has stated that Sub Registrar was not found present. Even if, the stand of the defendant is taken as correct that Sub Registrar was not available on 26.11.1974, no reasoning has been given for not registering the Will on 27.11.1974 to 4.12.1974. The plaintiffs also knew the importance of registration of Will and only on that account they stated that they went to the office of Sub Registrar on 26.11.1974 for registration. Mere proving thumb impression of the executant of the Will does not prove the execution of Will. The Will has to be proved volunteered deposition made by the deceased bequeathing his property in favour of the beneficiary. The findings of the trial Court, which are in detailed have been ignored by the First Appellate Court by misreading and misinterpreting the evidence. The First Appellate Court has observed that statement of the witnesses were recorded in mutation proceedings, which are discrepant in nature and as such the same are liable to be ignored. That finding of the First Appellate Court are factually incorrect and this fact has been admitted by the learned counsel for the respondents. These statements of the witnesses, which were discrepant in nature, were recorded at the time of registration of the Will after the death of the testator. The very fact that Will has been registered after the death of testator also proved the fact that the plaintiffs knew the importance of the registration of the Will. RSA No.201 of 1983 13 The First Appellate Court has observed that two Wills dated 26.11.74 and 4.12.74 were executed by Makhan Singh to be doubly sure that the property goes to the beneficiary. That findings are also erroneous. In case Makhan Singh has actually executed the Will dated 26.11.74, in that case there was absolutely no necessity for him to again execute the Will dated 4.12.1974. PW-2 Hazara Singh deposed that he cannot say whether registered Will in favour of Gurdip Kaur was cancelled vide Will dated Ex.P-1. Both the witnesses produced by the plaintiff have stated that Makhan Singh was not having good health and on that account he was admitted in Hospital. The learned trial Court has observed that plaintiffs have made a calculated move to create evidence in their favour. The photographer was arranged. The Will was registered after death of testator. The detailed reasoning have been given by the trial Court in paragraphs No.5 to 12 of its judgment. It has been observed that all the amounts lying in the saving bank of Makhan Singh had been withdrawn leaving a balance of Rs.5/- on 4.12.1974. The trial Court observed that Makhan Singh was living in his own house and died there. So, there was no question of rendering services by the plaintiffs to Makhan Singh deceased. The trial Court has observed that Dilbag Ram clerk of Post Office had come to the house of Makhan Singh for facilitating withdrawal of the amount and that speaks volumes against the execution of the Will in favour of the plaintiff. The finding of the trial Court to the effect that Dilbag Rai (PW-12) and Chanan Ram (PW- 11) have colluded with the plaintiff to procure the thumb impression of Makhan Singh on the Will. The very fact that only Rs.5/- was left in the account clearly shows that withdrawal was not by Makhan Singh but by the RSA No.201 of 1983 14 plaintiff so as to have a monitory benefit. Sawinder Singh, while appearing as (PW-16) has admitted that Makhan Singh has died in his own house. The trial Court also observed that the evidence of the plaintiff showed that deceased was living separately in a separate house. Sawinder Singh, (PW- 16) has further stated that Makhan Singh has brought up Gurdip Kaur. There is a recital in admitted Will dated 31.3.1971 that Gurdip Kaur is daughter of Makhan Singh. The First Appellate Court, after ignoring the admitted document, reached to the conclusion that she is a pichhlag daughter of Makhan Singh. The material witness produced by the plaintiff has not denied the fact that Gurdip Kaur is the daughter of Makhan Singh. PW-2 Hazara Singh in his cross-examination has stated that he does not know whether Makhan Singh has performed the marriage of Gurdip Kaur. He has further stated that he does not know whether she had been coming to Makhan Singh for living with him as his daughter. This witness has also feign ignorance about execution of the registered Will in favour of Gurdip Kaur. The learned trial Court has rightly held that since Makhan Singh was seriously ill and as such was not in a position to execute the Will. PW-2 Hazara Singh, the star witness of plaintiff in his cross-examination has admitted that Makhan Singh was in a feeble health. The plaintiff has relied upon the testimony of PW-6 Vijay Pal regarding the execution of Will Ex.P- 2. This witness has stated that he had no dealing with Makhan Singh. To execute a Will, the executant would normally call for a person in whom he can repose confidence, so that the Will actually takes effect after the death. Since, PW-6 Vijay Pal has no dealing with Makhan Singh, so the deceased would be the last person to choose such a person as a witness for RSA No.201 of 1983 15 execution of the Will. Vijay Pal (PW-6) has also admitted that he was not on visiting terms with the deceased. PW-6 Vijay Pal has also stated in the cross-examination that he does not know whether Gurdip Kaur is the daughter of Makhan Singh. The propounder of the Will has taken active part in the execution of the Will. So that circumstance also to make the Will suspicious. So that circumstance also made the Will suspicion, coupled with other circumstances. In the Will Ex.P-1, space in the last lines narrow down than the other portion of the Will. The plaintiffs knew the fact that in the registered Will, Makhan Singh has described Gurdip Kaur as his daughter. To overcome with that difficulty, in both the Wills, it is mentioned that Gurdip Kaur is the pichhlag daughter of Makhan Singh. The scribe of Will Ex.P-2 has not been produced. The said Will, according to the plaintiff, was