RSA No. 304 of 1985 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 304 of 1985 Date of Decision: 19.12.2008 Jagiri Ram (deceased) through his LR ....Appellant. Versus Ralla and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. K.S. Cheema, Advocate for the appellant. Mr. D.R. Mahajan, Advocate for the respondents. AJAY KUMAR MITTAL, J. In this regular second appeal filed by the plaintiff, challenge is to the judgment and decree dated 3.10.1984 passed by the first appellate court affirming that of the trial court dated 31.1.1984 whereby the suit of the plaintiff for declaration was decreed and the relief for permanent injunction was declined. The dispute in the present case related to 107 kanals 9 marlas of land, fully detailed in the head note of the plaint. As per the jamabandi, Ex.P2, the plaintiff was co-owner to the extent of 8/144th share, Bhagtu had 74/144th share while the rest of the land belonged to the defendants. Bhagtu who was issueless, adopted Charna as his son and gifted his share to him, on the basis of which mutation, Ex.P3, was sanctioned on 4.5.1932. It was pleaded that Charna died unmarried RSA No. 304 of 1985 -2- and issueless on 6/7.9.1980 and the plaintiff claiming himself to be the brother of Charna propounded a Will dated 3.11.1978, Ex.P1, allegedly executed by said Charna in his favour, on the basis of which mutation Ex.PA was entered. The Will, Ex.P1, was contested by defendants No.4 to 15 in the mutation proceedings by propounding another Will dated 27.3.1978 having been executed by Charna in favour of defendants No.4 to 7. Both the Wills were discarded by the Assistant Collector Ist Grade and the estate left by Charna was devolved as per natural succession vide order dated 28.8.1981, according to which the plaintiff along with his brother Rala and two sisters, got 1/4th share each in the estate of Charna. The plaintiff claimed the whole of the estate of Charna on the basis of Will, Ex.P1 and filed a suit for a decree for declaration to the effect that he was the co-owner in possession to the extent of 8/144th share in his own right and 74/144th share as the heir of Charna along with perpetual injunction restraining the defendants from interfering in his possession. Defendants No.4 to 15 contested the suit by filing a joint written statement and raising various preliminary objections therein. It was pleaded that Charna was the adopted son of Bhagtu and in lieu of services rendered to him and out of love and affection, he executed a Will dated 27.3.1978 in favour of defendants No.4 to 7. It was further pleaded that the Will propounded by the plaintiff was fictitious, false and a sham document. It was also pleaded that the defendants being the legal heirs of deceased Charna were entitled to succeed his estate. Defendants No.1 to 3 were proceeded against exparte by the trial court. In the replication filed by the plaintiff, he besides reiterating his RSA No. 304 of 1985 -3- averments styled the Will dated 27.3.1998 put forth by the defendants as false, forged and fabricated document. From the pleadings of the parties, the following issues were framed by the trial court:- “1. Whether deceased Charna executed a valid Will dated 3.1.1978 in favour of the plaintiff, if so, to what effect? OPP 2. Whether deceased Charna executed a valid Will dated 27.3.1978 in favour of the defendants No.4 to 7, if so, to what effect? OPD 3. If both the Wills are not proved who are the natural heirs of deceased Charna and what are their shares in the estate of deceased Charna? OP Parties 4. Whether the plaintiff is entitled to the declaration and permanent injunction as prayed for? OPP 5. Relief.” The trial court on appreciation of the oral as well as the documentary evidence led by the parties, decided issue No.1 against the plaintiff holding that deceased Charna had not executed any valid Will in favour of the plaintiff. The trial court while deciding issue No.2 against the defendants held that the Will, Ex.D1, was not executed in favour of defendants No.4 to 7. Under issue No.3, it was held that the plaintiff along with defendants No.1 to 3, defendants No.4 to 9, defendants No.10 to 14 jointly and defendant No.15 were entitled to succeed to the extent of 1/4th share each of the estate left by Charna. Accordingly, the trial court vide judgment and decree dated 31.1.1984 RSA No. 304 of 1985 -4- partly decreed the suit of the plaintiff holding him entitled to the declaration that he was owner in joint possession to the extent of 8/144th share in his own right and to the extent of 1/4th share out of the 1/4th share jointly succeeded by him along with defendants No.1 to 3 from the estate of deceased Charna, however, declined the injunction as prayed for by the plaintiff. Feeling aggrieved against the judgment and decree passed by the trial court, the plaintiff approached the lower appellate court which vide judgment and decree dated 3.10.1984 affirmed the findings recorded by the trial court and dismissed the appeal. Mr. Cheema, learned counsel for the appellant has vehemently submitted that the Will dated 3.11.1978, Ex.P1, has been illegally discarded on the ground of suspicious circumstances. The findings recorded by the courts below are based on conjectures and surmises and, thus, legally unsustainable. The learned counsel contended that the Will, Ex.P1, has been held to be suspicious on the basis of conjectures and no sound reason has been given to discard the same. The Will (Ex.P1) has been rejected on the grounds that it was unregistered document, not scribed by a regular deed writer, one of the attesting witnesses Piara Singh is the brother-in-law of the plaintiff, while the other attesting witness, Amar Singh had attested about 100 Wills and there were material discrepancies in the statements of the witnesses of the plaintiff. Attacking the grounds given by the courts below for treating the Will, Ex.P1, to be suspicious, the learned counsel argued that the brothers and sisters are parties and have not controverted the Will. The testator RSA No. 304 of 1985 -5- could get it cancelled as well as he remained alive for two years thereafter. It is not essential that a Will is scribed by a regular deed writer and, therefore, the same could not create suspicion. Further, close relatives are the attesting witnesses and that cannot be a ground to create doubt on the veracity of the Will. The Will had been attested by the brother-in-law (sister's husband) Piara Singh. Reliance was placed on the following judgments:- “1. Smt. Pritam Kaur and others v. Chanan Singh and others, 1985 PLJ 488, 2. Velayudhan Nair v. Kalliyanikutty Amma, 2006 (2) CCC 665, 3. Smt. Deokali v. Nand Kishore and others, 1996 (2) CCC 20, 4. Sadhu Singh v. Jagir Singh and othes, 2006 (3) CCC 70, 5. Shiv Narain v. Bhagat Ram and others, 1998 (3) CCC 157. 6. Gurbaksh Singh v. Jagat Singh, 1994 (1) CCC 732” The reasoning of discarding of Will for want of registration was sought to be challenged by submitting that the non-registration of a Will cannot be a ground to discard the same as it is not mandatory to get the Will registered and the reliance was placed by the learned counsel on the following judgments:- “1. Punjab Kaur v. Mohinder Singh, 1993 (3) CCC 604 2. Smt. Pritam Kaur and others v. Chanan Singh and RSA No. 304 of 1985 -6- others, 1985 PLJ 488, 3. Velayudhan Nair v. Kalliyanikutty Amma, 2006 (2) CCC 665, 4. Gurbaksh Singh v. Jagat Singh, 1994 (1) CCC 732 5. Sadasivam v. K. Doraisamy, 1996 (1) Apex Court Journal 1 (SC)” According to the learned counsel, even if there were minor discrepancies in the statements of the witnesses, the same are bound to occur by passage of time as held in Shakuntala Devi v. Savitri Devi and others, AIR 1997 HP 43. Mr. Cheema, learned counsel for the appellant has further submitted that ; (a) the plaintiff had specifically averred in para 4 of the amended plaint that Charna was only adopted heir of Bhagtu under custom and he was never transplanted. The effect of this would be that the property would not go to collaterals etc. of Bhagtu but devolve upon the plaintiff and defendants No.1 to 3 only in view of the judgment reported in Chanda Singh and others v. Mst. Banto and another, ILR 1927 Lahore page 584 and not other heir as done by the courts below; b) That if in the reply to para 4 of the written statement, there was a specific denial of this averment then an issue ought to have been framed which was not done alternatively if there was no specific denial, then it RSA No. 304 of 1985 -7- amounted to an admission. Elaborating further, the learned counsel relied upon Order 8 Rules 3 and 5 of the Code of Civil Procedure (hereinafter referred to as “the Code”) to buttress his submissions that denial has to be specific and if that is not done then it amounts to admission. Reliance was placed on Mehnga Singh and others v. Gurdial Singh and others, AIR 2004 P& H 93, Sarwan Singh v. Kankar Singh, 2001 (1) CCC 571 and M. Venkataramana Hebbar (D) by L.Rs v. M. Rajagopal Hebbar and others, JT 2007 (6) SC 164. Reliance was also placed upon Smt. Indira Madani and others v. Hola Ram (deceased) by LRs and others, AIR 2003 Delhi 49, Anneppa Channappa Shetkar and another v. Bandevva (deceased) by LRs and others, AIR 2004 Karnataka 276 and Smt. Shanti v. Tarawati and others, 1996 (3) PLR 413 to substantiate the plea that where there is specific denial, an issue should have been framed. Otherwise, the case requires to be remanded to the courts below under Order 41 Rule 25 of the Code to decide afresh after framing proper issue. Learned counsel concluded by arguing that Shankar had died before Charna as per statement of the plaintiff-PW5. His progeny defendants No.10 to 14 have no right to succeed and, therefore, 1/4th share to progeny of Shankar is not correct. According to the learned counsel, the appeal raises the substantial questions of law for consideration of this Court. Mr. Mahajan, learned counsel for the respondents, controverting the submissions urged that after appreciating the RSA No. 304 of 1985 -8- evidence concurrent findings of fact have been recorded by both the courts below that Will dated 3.11.1978 (Ex.P1) is surrounded by suspicious circumstances and further that Charna was adopted son of Bhagtu and these findings do not call for any interference as no reappreciation of evidence is permissible in exercise of jurisdiction under Section 100 of the Code. The learned counsel placed reliance upon Apex Court judgments in Boodireddy Chandraiah and others v. Arigela Laxmi and another, 2007 (4) RCR (Civil) 353, Mst. Sugani v. Rameshwar Das and another, 2006 (4) RCR (Civil) 319 and Santosh Hazari v. Purushottam Tiwai (Dead) by LRs, 2001 (3) RCR (Civil) 243 : AIR 2001 SC 965 to buttress his submission. He also submitted that no substantial questions of law arise in this appeal. On the strength of judgment reported in H. Venkatachala Iyengar v. B.N. Thimmajamma and others, AIR 1959 SC 443 the learned counsel argued that it is the conscious of the court that is to prick while deciding the genuineness or otherwise of a Will and the cumulative effect of various circumstances surrounding the execution of the Will are the guiding factors for holding it to be genuine or discarding the same. He next relied upon the provisions of Order 14 Rule 5 of the Code to canvass that the plaintiff-appellant should have filed an application for framing an issue in case an issue arose from the pleadings of the parties. He submitted that this point was never raised before the trial court and the lower appellate court has given finding against him. He relied upon the judgment reported in Swaraj Engines Limited v. Punjab State Industrial Development Corporation, 2007 (4) RCR (Civil) 573. He further submitted that the trial court on RSA No. 304 of 1985 -9- 19.11.1982 while framing the issues had recorded that no other issue is pressed or claimed. He also emphasized that the plaintiff when appeared as a witness as PW5, had no where deposed that there was custom prevalent by which they were governed and, therefore, no benefit can be derived by them by raising such an argument. Charna was described as adopted son of Bhagtu, even in the Will, Ex.P1, and so has been done by him in the Will, Ex.D1. Responding to the last submission of Mr. Cheema, it was pressed that no evidence had been led by the appellants regarding the date of death of Shankar and this point was never urged before the courts below. He submitted that throughout the proceedings, the thrust of the appellants had been on the validity of the Will dated 3.11.1978 (Ex.P1) only and the decision of the courts below on issue No.3 is, thus, legal and valid. I have heard both the learned counsel for the parties at great length and find myself unable to accept the pleas of Mr. Cheema. On the basis of arguments raised by the learned counsel for the parties, the controversy between them requires adjudication on the following three aspects:- a) Whether Will dated 3.11.1978, Ex.P1, is a valid and legal testament, b) whether an issue was required to be framed with regard to averment made in para 4 of the amended plaint, wherein it was averred that Charna was only adopted heir of Bhagtu under custom and he was never transplanted. RSA No. 304 of 1985 -10- c) Whether progeny of Shankar was entitled to any share in the property? Section 63 of the Indian Succession Act, 1925 (for short, “the Act”) prescribes the formalities that are required to be fulfilled for execution and attestation of unprivileged Wills. A Will or testament is a declaration in a prescribed manner which specifies the intention of the person executing it with respect to the matters which he wishes to take effect after his death. A perusal of clause (c) of Section 63 of the Act makes it clear that the Will shall be attested by two or more witnesses, each of whom should have seen the testator signing or affixing his mark to Will or has seen some other person signing the Will in the presence and by the direction of the testator and each of the witnesses shall sign the Will in the presence of the testator. The mode of proof of a “Will” has been enumerated under Section 68 of the Evidence Act, 1872. According to it, if a document is required by law to be attested, it shall be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive who is capable of giving evidence. The responsibility to prove the due execution of a Will is upon a person who propounds the same and in the absence of any suspicious circumstances, surrounding the execution of the Will, the proof of testamentary capacity to execute the testament together with his signatures thereon, as required by law, is sufficient to discharge the onus. The burden is on the propounder of the Will to dispel any RSA No. 304 of 1985 -11- legitimate doubt to the satisfaction of the court whereupon, the court shall accept it to be genuine. The conscious of the court is required to be satisfied in the event of existence of suspicious circumstances. The Apex Court in H. Venkatachala Jyengar's case (supra) while laying down certain principles for adjudging the validity of a Will has in paras 19 to 21 in clear terms observed as under:- “19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence RSA No. 304 of 1985 -12- adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the depositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate RSA No. 304 of 1985 -13- suspicious should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. 21. Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of RSA No. 304 of 1985 -14- the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.” No doubt, the judgments relied upon by the learned counsel for the appellant enunciate and reiterate well settled principles concerning interpretation of Law of Wills and help him if each factor is taken separately. In the opinion of this Court while declaring and accepting last testament of a person to be genuine or otherwise, it is the cumulative factors which exist in that case are to be borne in mind and it is not that each factor taken in isolation and then applying ratio RSA No. 304 of 1985 -15- decidendi of cases shall empower the court to pronounce the Will to be valid and binding. Moreover, it is manifest for the Court to evaluate the circumstances in favour of the genuineness of a Will vis-a-vis factor which weigh for holding it to be surrounded by suspicious circumstances and then arrive at the just decision. After giving my thoughtful consideration to the entire matter, I do not find any illegality in the findings of fact recorded by the courts below holding the Will dated 3.11.1978 (Ex.P1) to be shrouded by suspicious circumstances and, thus, not legally valid. The execution of both the Wills, Ex.P1 and Ex.D1 has been proved as required by law, but the courts below on evaluation of the evidence on record have discarded both the Wills on the ground that they are shrouded by suspicious circumstances. In addition to the facts taken into consideration by the courts below, additionally Ex.P1, i.e. Will dated 3.11.1978, has no reference to unregistered earlier Will dated 27.3.1978 (Ex.D1). Once the courts below concurrently on appreciation of evidence record its conclusion against the validity of a Will, the High Court shall not substitute its own opinion even when two views are possible unless it can be shown that the findings recorded by the courts below are so perverse or illegal that it cannot stand judicial scrutiny or the findings are based on misreading or misappreciation of the evidence. The aforesaid view is fortified from the guidelines laid down by the Apex Court in Mst. Sugani's case (supra), wherein while laying down parameters for interference in the regular second appeal in exercise of jurisdiction under Section 100 of the Code of Civil Procedure, it has been observed thus:- “It is not within the domain of the High Court to RSA No. 304 of 1985 -16- investigate the grounds on which the findings were arrived at, by the last court of fact. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal, when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible. One drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or