RSA No.617 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ` RSA No. 617 of 1989 Date of Decision: 20.01.2009 Jawahar Singh Ors. ..Appellants Vs. Smt.Tej Kaur & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.O.P.Goyal, Sr. Advocate, with Ms.Priya Khurana, Advocate, for the appellants. Mr.M.L.Saggar, Sr. Advocate, with Mr.ABS Sidhu, Advocate, for respondent No.1. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- RSA No.617 of 1989 2 Vinod K.Sharma,J. This appeal is directed against the judgment and decree passed by the learned lower appellate court decreeing the suit filed by the plaintiff- respondent seeking declaration that the sale deed dated 12.1.1981 regarding land measuring 6 Biswas 13 ½ Biswasi out of land measuring 1 Bigha19 Biswas and 5 Biswasi bearing khewat No.45 Khatauni No.84 Khasra No.132 situated at village Rangian Hat Bast No.332 Tehsil and District Ludhiana executed by Sant Singh deceased in favour of defendant No.1, to be void, illegal, without consideration, bogus, sham transaction and not binding on the plaintiff. As a consequential relief, possession of the land was sought. The plaintiff claimed that Kehar Singh had three sons namely Rattan Singh, Jawahar Singh and Sant Singh. Plaintiff/respondent is the widow of Rattan Singh, whereas Sant Singh was impleaded as defendant No.2 and Jawahar Singh as defendant No.3. Kehar Singh died on 14.12.1975. It is the case of the plaintiff that Kehar Singh executed a registered Will dated 6.3.1959 in favour of Jagdev Singh son of Rattan Singh. Jagdev Singh also died on 14.1.1982. He was said to be unmarried and the plaintiff being mother succeeded to the estate of Jagdev Singh. After the death of Kehar Singh dispute arose regarding mutation of his estate. Mutation was first sanctioned in favour of natural heirs by ignoring the Will. The plaintiff claimed that taking advantage of the mutation Sant Singh father of defendant No.2 sold the disputed land in favour of defendant No.1 by way of registered sale deed dated 12.6.1981. It is the case of the plaintiff that Sant Singh had no right to alienate any part of RSA No.617 of 1989 3 the land left by Kehar Singh in view of the Will having been executed by Kehar Singh in favour of Jagdev Singh. It is also the case of the plaintiff that mutation of estate of Kehar Singh now stood sanctioned in favour of Jagdev Singh and that the suit filed by defendants No.2 and 3 against Jagdev Singh challenging the Will dated 6.3.1959 stands dismissed by the learned Sub Judge, Ludhiana. It was also pleaded that Jagdev Singh had filed a suit for declaration of ownership in the estate left by Kehar Singh on the basis of Will dated 6.3.1959 in which disputed sale deed was also attested. However as the mutation was sanctioned in favour of the plaintiff on 16.4.1982 the suit was withdrawn with permission to file a fresh one on the same subject- matter subject to payment of Rs.50/- as costs. The plaintiff claimed that the cost of Rs.50/- stand deposited. The suit was contested by the defendants. It was denied that Smt.Tej Kaur was wife of Rattan Singh. It was also claimed that Kehar Singh was in possession of Hindu undivided joint family property and Rattan Singh, Jawahar Singh and Sant Singh as members of the coparcenary family. Kehar Singh had no right to execute the Will of ancestral property without the consent of other co-parceners. The Will was alleged to be the result of misrepresentation. Maintainability of the suit was also challenged by invoking the provisions of Order 23 Rule 1 of the Code of Civil Procedure (for short the Code) on the plea that the suit filed by Jagdev Singh against other sons of Kehar Singh stood dismissed on 20.9.1976 by Shri S.S.Chopra, Senior Sub Judge, Ludhiana as no RSA No.617 of 1989 4 permission to file a fresh suit was obtained. Permission granted by the learned trial court in the subsequent suit was challenged to be illegal and without jurisdiction. It was claimed that the suit filed was not as per permission granted by the court. Thus, prayer was made for dismissal of the suit. The plaintiff filed replication wherein pleas raised in the plaint were reiterated and that taken in the written statement were denied. It was claimed that there was no necessity for the plaintiff to continue the suit which was dismissed on 20.9.1976 as mutation of inheritance stood sanctioned in favour of Jagdev Singh. On the pleadings of the parties learned trial court was pleased to frame the following issues:- 1. Whether the sale deed dated 12.6.1981 is illegal, void ultra vires, sham and is not binding on the plaintiff, as alleged in the plaint? OPP 2. Whether the suit has been filed in accordance with the permission granted to the plaintiff? OPP 3. Whether the permission granted is illegal? P{D 4. Whether Tej Kaur is the heir of Jagdev Singh? OPP 5. Whether Kehar Singh executed valid Will in favour of Jagdev Singh? OPP 6. Relief. Learned trial court took up issue No.5 regarding the validity of the Will executed in favour of Jagdev Singh first and by taking into RSA No.617 of 1989 5 consideration the evidence led held that the Will was surrounded by suspicious circumstances. The learned trial court held that Kehar Singh died after about 16 years of the execution of the Will and there was no evidence that Kehar Singh suffered from any serious ailment before his death. The learned trial court also found that as Jagdev Singh was 4-5 years of age in the year 1959 when the Will was executed, the stipulation in the Will that it was being executed to compensate his grand-son Jagdev Singh for the services rendered by him, therefore, could not be believed. The other suspicious circumstance taken note of was that admittedly Kehar Singh had three sons alive in the year 1959 but there is no reference at all about other legal heirs in the Will Ex.P.1 nor there was any reason given to disinherit them. The learned court observed that this fact could have lost importance if the Will was executed in favour of all his grand-sons. The contention that the Will was made as Kehar Singh was living with Rattan Singh only and other sons were living separately could not be believed in the absence of this fact having been mentioned in the Will Ex.P.1. The learned court observed that defendant No 3 in his statement categorically stated that his father had been visiting Rangia and that the ancestral house is now occupied at village Rangia by Kehar Singh. The learned trial court held that it was admitted case that Jawahar Singh son of Kehar Singh has constructed his house in village Rangia itself. The learned court also held that there was no evidence to show that Kehar Singh did not like his other sons for one reason or the other and therefore, merely because one or other son stayed outside the RSA No.617 of 1989 6 village for their job or for any other reason cannot be a ground to disinherit them. The learned trial court, thus, held that Rattan Singh might have influenced his father to thumb mark some document by misrepresentation of facts. The court also observed that after execution of the Will Gurdip Singh, attorney of Tej Kaur was born and in case Kehar Singh had love for Jagdev Singh due to his residence with Rattan Singh then certainly he would have changed the Will to include Gurdeep Singh as one of the beneficiaries. The learned trial court also observed that beside Jagdev Singh, Rattan Singh had 4 sons and 8 daughters. However, the fact that Kehar Singh did not include any of other sons of Rattan Singh to inherit his estate showed that the document was kept secret from Kehar Singh who was unaware of the consequences. The learned court, thus, held that in view of suspicious circumstances referred to above it was not sufficient to examine only Bakhtawar Singh to prove the Will as the other attesting witnesses were Kartar Singh, lamberdar and Bhajan Singh both of whom residents of village Rangia. The learned trial court also held that it was not explained as to why only Bakhtawar Singh was produced who belonged to village Lalton which is at a distance of 6 Kilometers from village Rangian. The learned trial court found that there was no evidence brought on record to show that Kehar Singh was really looked after by Rattan Singh and his family only and he was having disliking for his other sons and their families. Thus, in view of the suspicious circumstances referred to above the learned trial court held that the Will Ex.P.1. was not genuine document. RSA No.617 of 1989 7 The learned trial Court, however, did not agree that the property was coparcenary Hindu Joint family property for want of pleadings and evidence in support of this stand. Issue No.1, thus, was decided in favour of the defendant and against the plaintiff by observing that the challenge to the sale deed was only on the ground that Sant Singh had no right or title to sell the suit land. The learned trial court, however, held that Sant Singh was also one of the legal heirs of Kehar Singh and therefore, he had every right to dispose of his share in the land subject to adjustment at the time of partition. However, issue No.2 was decided in favour of the plaintiff by holding that as per the frame of suit the suit was as per the permission granted and merely because scope of inquiry increased will not render the suit to be bad. Issue No.3 was decided against the defendant being not pressed whereas issue No.4 was decided in favour of the plaintiff. Consequently the suit was ordered to be dismissed. The plaintiff preferred an appeal. Learned lower appellate court reversed the fining on issue No.5 by holding that mere non-mentioning of other natural heirs of Kehar Singh in the Will did not make the Will invalid. It was also held that absence of any reason as to why other legal representatives were disinherited is not a ground to doubt the Will. Learned lower appellate court observed that it was proved on record that other legal representatives of Kehar Singh were residing outside the village and only Rattan Singh son of Kehar Singh and father of Jagdev Singh was residing in the village with Kehar Singh so it was natural for him to execute the Will RSA No.617 of 1989 8 in favour of Jagdev Singh his grand-son who as per the Will used to render necessary services along with his father to Kehar Singh, therefore, it was on account of love and affection that the Will was executed in favour of Jagdev Singh, his grand-son. The learned lower appellate court observed that there was no evidence on record to prove that assertion of misrepresentation of putting pressure on Kehar Singh, as alleged. Learned lower appellate court observed that the will was scribed by Khem Raj, PW.1 a licenced Deed Writer of Malaut and the same was attested by three witnesses namely Bakhtawar Singh PW 2, Kartar Singh Lamberdar and one Bhajan Singh. The Will was registered by Shri Amar Surjit Singh, Sub- Registrar of Malaut who was examined as PW 3. The learned lower appellate court observed that the execution of the Will was duly proved and it made no difference if Kehar Singh was not personally known to scribe or regarding authenticity. The learned lower appellate court also held that as no suggestion was put to the witnesses that the Will was not singed by the attesting witnesses, the attestation could not be doubted. The learned lower appellate court also observed that Bakhtawar Singh, one of the attesting witnesses, proved the execution of the Will. He deposed that Kehar Singh was in sound disposing state of mind. The evidence given by Bakhtawar Singh was supported by the evidence of Khem Raj, Deed Writer as PW 1. Entry in the deed writer register was also thumb marked by Kehar Singh. Registration of the Will was also proved by Sub-Registrar. The learned court observed that the endorsement of the Sub-Registrar carries presumption of truth, which was got proved from the Sub-Registrar Shri RSA No.617 of 1989 9 Amar Surjit Singh as PW 3. The learned lower appellate court held that merely because the witness Bakhtawar Singh belongs to other village could not be a reason to discard his testimony, especially when it was proved that he used to visit village Rangia, as he had inherited land in that village from his in-laws side. The learned court observed that merely because attesting witness belonged to another village is not a ground to discard his statement. The learned lower appellate court held that non-examination of other witnesses could not be said to be fatal to prove the Will as no suggestion was put to the witnesses that the Will was procured by Rattan Singh by misrepresentation or in collusion with the scribe or attesting witnesses. The learned court observed that it was also not put to the witnesses that the Will was kept secret by Rattan Singh. The learned lower appellate court held that the Sub-Registrar can be taken to be the attesting witness as per the provisions of Section 60 of the Registration Act. The learned lower appellate court held that the factum of the Will having been thumb marked by Kehar Singh was not disputed as no suggestion was put to the witnesses that the Will in question did not bear thumb impression of Kehar Singh and in the absence of any satisfactory evidence to show that Rattan Singh obtained the Will by misrepresentation in collusion with the scribe, the Sub Registrar and attesting witnesses, the Will deserved to be upheld. The learned lower appellate court also held that Gurdeep Singh was born after the execution of the Will and therefore, it was not possible RSA No.617 of 1989 10 to have included Gurdeep Singh in the Will. The learned lower appellate court held that though Jagdev Singh was only 4-5 years of age but it has come on record that his father Rattan Singh used to render necessary services to Kehar Singh and thus, it was natural for Kehar Singh to have willed away his property in favour of his grand-son out of love and affection for him. Therefore, it could not be unnatural. The learned lower appellate court also held that non-mentioning of name of other beneficiaries could not be a ground to doubt the execution of the Will. The finding on issue No.5 was reversed. The learned lower appellate court observed that as the Will has been held to be valid document so Jagdev Singh was owner of the property left behind by Kehar Singh and after his death his mother Tej Kaur plaintiff became absolute owner of the property. Sant Singh deceased father of defendant No.2, therefore, did not have right to alienate the suit land by way of sale in favour of Surjit Singh defendant as he had no title to the suit land sold by him vide sale deed dated 12.6.1981. The sale deed was declared to be illegal, void and not binding on the rights of the plaintiff. The learned lower appellate court also held that the suit was filed as per the permission granted and finding of the learned trial court on issue No.2 was affirmed. As the findings on issues No.3 and 4 were not challenged or assailed the same were also affirmed and consequently the suit was decreed by accepting the appeal. Learned senior counsel for the appellants contends that the RSA No.617 of 1989 11 appeal raises the following substantial for consideration by this Court. 1. Whether the withdrawal of suit filed by Tej Kaur on 26.7.1983 against Surjit Singh, Takhur Singh and Jawahar Singh on 20.9.1976 and also in view of the withdrawal of second suit on 9.12.1982 the suit filed is barred under provisions of order 23 Rule 1 CPC? 2. Whether the Will dated 6.3.1959 is surrounded by suspicious circumstance and therefore, not validly executed? Learned senior counsel appearing on behalf of the appellants has challenged the finding of the learned courts below on issue No.2 on the plea that Jagdev Singh son of Rattan Sing and Rattan Singh husband of Smt.Tej Kaur plaintiff/respondent filed a suit for declaration and permanent injunction on 19.4.1976 claiming that the plaintiff was owner in possession of land measuring 39 Bighas 6 Biswas 13 Biswasi. The said suit was filed against all the legal heirs of Kehar Singh. The suit was on the plea that Kehar Singh had executed a valid registered Will on 6.3.1959 and according to the Will, Kehar Singh bequeathed the entire property in dispute to Jagdev Singh. Copy of the plaint was exhibited as Ex.D.9. The suit was dismissed as withdrawn without permission to file a fresh one on the same cause of action. Copy of the order dismissing the suit was placed on record as Ex.D.1. RSA No.617 of 1989 12 Jagdev Singh and Rattan Singh, therefore, filed another suit on 15.9.1981 against Sant Singh, Jawahar Singh sons of Kehar Singh and Surjit Singh seeking declaration to the effect that Jagdev Singh is the owner in possession of entire suit land on the basis of registered Will dated 6.3.1959 and that dated 12.6.1981 executed by Sant Singh in favour of Surjit Singh to be illegal, void, bogus and sham transaction and thus, not binding on the plaintiff. The second suit was allowed to be withdrawn vide order dated 9.12.1982, Ex.D.10. The present suit was filed by Smt.Tej Kaur mother of Jagdev Singh on 26.7.1993 against Sant Singh, Thakur Singh and Jawahar Singh claiming that the sale deed dated 12.8.1981 executed by Sant Singh in favour of Sant Singh is void illegal, bogus and sham transaction and for possession of the land as consequential relief. Learned senior counsel contended that the suit as framed was not competent in view of the bar contained under Order 23 of the Code of Civil Procedure, thus, finding of the learned lower appellate curt on issue No.2 cannot be sustained. In support of his contention learned senior counsel for the appellant placed reliance on the provisions of Order 23 of the Code of Civil Procedure which reads as under:- “23. Withdrawal and Adjustment of suits 1. Withdrawal of suit or abandonment of part of claim.—(1) At any time after the institution of a suit, the RSA No.617 of 1989 13 plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied.-- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff-- (a) abandons any suit or part of claim under sub-rule (1) or (b) withdraws from a suit or part of a claim without the RSA No.617 of 1989 14 permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs. 1-A. When transposition of defendants as plaintiffs may be permitted.-- Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants. 2. Limitation law not affected by first suit.-- In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. 3. Compromise of suit.-- Where it is proved to the RSA No.617 of 1989 15 satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject- matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit,whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit. Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment. Explanation.-- An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule. 3-A. Bar to suit.-- No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. RSA No.617 of 1989 16 3-B. No agreement or compromise to be entered in a representative suit without leave of Court.-- (1) No agreement or compromise in a representative suit shall be entered into without the leave of the Court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court so recorded shall be void. (2) Before granting such leave,the Court shall give notice in such manner as it may think fit to such persons as may appear to it to be interested in the suit. Explanation.-- In this rule, “representative suit” means,-- (a) a suit under section 91 or section 92, (b) a suit under rule 8 of Order I, (c) a suit in which the manager of an undivided Hindu family sues or is sued as representing the other members of the family, (d) any other suit in which the decree passed may, by virtue of the provisions of this Code or of any other law for the time being in force, bind any person who is not named as party to the suit. 4. Proceedings