RSA No.3046 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Regular Second Appeal No.3046 of 1985 Date of decision 03.03.2011 Nachhattar Singh ….Appellant/Defendant. Versus Angrez Kaur ….Respondent/Plaintiff CORAM : HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Shri M.L. Sarin, Sr. Advocate, with Mrs Alka Sarin, Advocate, for the appellant. Shri H.S.Gill, Sr. Advocate, with Shri Vivek Goyal, Advocate, for the respondent. JITENDRA CHAUHAN, J. 1. This regular second appeal No.3046 of 1985 is preferred by Nachhattar Singh against the impugned judgment and decree dated 11.10.1985 passed by Additional District Judge, Faridkot, in Civil Appeal No.340/125 of 1983-84 vide which his appeal against the judgment and decree dated 1.9.1983 passed in Civil Suit No.704 of 1981 decreeing the suit of the plaintiff respondent, was dismissed. 2. The following pedigree table will be helpful in understanding the facts of the present case. Mal Singh ( died in 1940) | | Har Kaur Pre-deceased wife Jeoni (wife) | of Mal Singh Died issueless on 5.10.1980 Angrez Kaur (daughter) | | Plaintiff Lal Singh Bishan Singh ( Both are brothers of Smt Jeoni) | | Nachitter Singh Jarnail Singh Defendant Fauji RSA No.3046 of 1985 2 Har Kaur, the mother of Angrej Kaur, pre-deceased her husband, Mal Singh, who died in the year 1940. Mal Singh contracted second marriage with Smt. Jeoni, who remained issueless. Smt. Jeoni inherited land in dispute from Mal Singh. Smt Jeoni died on 05.10.1980, issueless, as no child was born to Smt Jeoni from the loins of Mal Singh. Har Kaur died prior to the death of Mal Singh as already stated. Mutation No.4804 of Village Sukhna Ablu, regarding the estate of Smt Jeoni was sanctioned in favour of Smt Angrez Kaur being natural succession. These facts are not disputed. 3. Smt Angrej Kaur plaintiff filed a civil suit before the trial court that she had inherited the property of her step mother Smt Jeoni. The defendant Nachhattar Singh, who is nephew of Smt Jeoni had taken illegal and forcible possession of the suit land after the death of Smt. Jeoni. Since the plaintiff claims herself to be the sole heir of Smt Jeoni, the plaintiff submitted that she is entitled to take possession of land measuring 48 kanals 18 marlas of land situated in village Sukhna Ablu, Tehsil Mukatsar, the details of which are mentioned in the head note of the plaint. 4. The defendant contested the suit of the plaintiff stating that the suit is not maintainable. The defendant set up a will dated 4.10.1980 and pleaded that Smt Jeoni executed a will dated 4.10.1980 in sound disposing mind in lieu of services rendered to her by him. 5. From the pleadings of the parties the following issues were framed: 1. Whether the plaintiff is the daughter of Mal Singh, deceased? OPP 2. Whether the plaintiff is entitled to the possession? OPP 3. Whether Jeoni left a valid will dated 4.10.1980 in favour of the defendant? OPD RSA No.3046 of 1985 3 4. Whether the suit in the present form is not maintainable? OPD 5. Relief 6. Issue no.1 was decided in favour of the plaintiff and against the defendant by the trial court. Issue no.3 was decided against the defendant holding that it cannot be said that Jeoni executed a valid will dated 4.10.1980 in favour of Nachhattar Singh defendant. The learned trial court decreed the suit of the plaintiff for possession of agricultural land measuring 48 kanals 16 marlas as prayed for. 7. Against this judgment and decree, Nachhattar Singh preferred an appeal which was dismissed with costs by the learned Additional District Judge, Faridkot affirming the judgment and decree of the learned trial court. 8. Hence, this regular second appeal No.3046 of 1985 is preferred by Nachhattar Singh challenging the judgments and decrees of both the courts below. 9. It is worthwhile to mention here that Smt Angrez Kaur died during the pendency of the present appeal. Vide order dated 26.02.2007 of this Court passed in Civil Misc. No.7684 C of 2006, Gurpal Singh and Sukhpal Singh sons of Harbans Singh son of Angrez Kaur and Rachhpal Singh son of Sukhdarshan Singh son of Angrez Kaur were ordered to be brought on record as it is alleged that Angrez Kaur during her life time had executed a registered will dated 27.3.1987 bequething her movable and immovable property in favour of her grand sons namely Gurpal Singh and Sukhpal Singh sons of Harbans Singh equally to the extent of Half share and remaining half share to Rachhpal Singh son of Sukhdarshan Singh. These legal representatives of appellant Angrez Kaur deceased were ordered to be brought on record subject to just exceptions. 10. Mr. M. L. Sarin, learned Sr. Advocate argued that the will dated 4.10.1980 has been duly proved by Lal Chand, Deed Writer, DW1, the scribe RSA No.3046 of 1985 4 of the will and Pritam Singh, DW2, a marginal witness of the will. Mr Sarin further submits that Dr Shadi Lal Puri, DW3, proved the fitness of Smt Jeoni to make the statement. The counsel for the appellant further submits that there is no suspicious circumstance around the execution of the will. Because the will is unregistered, this fact itself is not a suspicious circumstance. The learned counsel further submits that once a will is proved by two witnesses, then the onus shifts on the person who alleges the will as being forged or obtained under undue influence or coercion to prove the same, which onus has not been discharged by the plaintiff Angrej Kaur. The will was executed on 04.10.1980 and the testator Smt Jeoni died on 05.10.1980 is also not a suspicious circumstance in view of the statement of Dr Shadi Lal Puri, DW3, who proved that the testator was in a sound disposing mind at the time of the execution of the will. In the end, Mr Sarin submits that to examine the validity of the will in the regular second appeal is substantial question of law. 11. Mr H.S.Gill, learned Sr. Advocate submits that both the courts below on appreciation of evidence have held that Smt Angrej Kaur is daughter of Mal Singh and that impugned will dated 4.10.1980 is not genuine document and is surrounded by suspicious circumstances. Both the learned Courts below, after considering the material on record, have returned concurrent findings of facts and no substantial question of law is involved in this regular second appeal. 12. I have heard the learned counsel for the parties and have perused the lower court record with their able assistance. 13. The main question to be decided in this regular second appeal is “whether the judgments and decrees of both the courts below, rejecting the will Ex.D.1, is perverse.” 14. A will is a document like tissue paper. When a drop of suspicion falls on the will, it will dissolve. In this case, the testator, an infirm and old RSA No.3046 of 1985 5 aged lady, died within 24 hours from the alleged execution of unregistered will Ex.D.1. Though both the courts below have concurrently held against will Ex.D.1, this court, to satisfy its conscience as ‘exceptional case’, has read the oral and documentary evidence, with the assistance of both the learned counsel for the parties and has come to the conclusion that both the courts below have rightly brushed aside the will Ex.D.1, as it is surrounded by suspicious circumstances. 15. The will, Ex.D.1, is unregistered document, which was allegedly executed in the hospital. Smt Jeoni, the testator of the will Ex.D.1, was lying admitted in the hospital of DW-3, Dr. Shadi Lal Puri. The doctor has not made any endorsement on the will that the testator was in sound disposing mind and understood her good and bad. The will is attested by two marginal witnesses and one of them, Karnail Singh son of Sajjan Singh, was withheld and was not examined, perhaps for the reason that he might not support the will, Ex.D.1. It was necessary to examine him to clear the doubts arisen after the testator died on the next day. Dr. Shadi Lal Puri, DW3, admitted in his cross examination that he did not knew Smt Jeoni personally. No indoor medical file of the testator was brought on record by him though he admitted that he maintained the record of the indoor patients. The ailment and the diagnosis of the testator have not come on record. No effort was made to get the will registered with the Sub Registrar. There is a special provision in the Registration Manual that if a person is unable to go to the office of Sub Registrar for some reason to get the document registered, then on request of the party, the Sub Registrar comes at the spot and registers a document on deposit of some fee. Only explanation given is that the Sub Registrar was not in his office, which is falsified from the statement of PW4-Brij Lal, Registry Clerk, of the office of Joint Sub Registrar, Gidderbaha who states that Shri RSA No.3046 of 1985 6 Gurcharan Singh Dhillon, Joint Sub Registrar was present in his office on 4.10.1980. and he registered another document scribed by the same Document Writer namely Shri Lal Chand Singla written between 11/12 noon. 16. Another strong suspicious circumstance is the statement of Brij Lal, Registry Clerk, PW4, who has deposed that on 4.10.1980, one Jarnail Singh Fouji had submitted an application, the certified copy of which is Ex.P.3, before the Joint Sub Registrar in his office, that Smt Jeoni, aged about 80 years, lying unconscious in the Gidderbaha Hospital, has not executed any will or other document and she was unable to speak. Jarnail Singh Fouji is real nephew of Smt Jeoni. When Jarnail Singh nephew of Smt Jeoini, became suspicious of the activity of his cousin, Nachhattar Singh, who was trying to take thumb impression of Smt Jeoni, when she was unconscious, for manuplating a will, he immediately moved an application, Ex.P.3. On this application, Ex.P.3, presented by Jarnail Singh in person, the Joint Sub Registrar ordered that whenever any document is presented for registration, the application be put up before him. The apprehension of Jarnail Singh came true. Men may tell lie but the documents cannot. Mark ‘A’, a note on the letter-pad written by Dr Shadi Lal Puri that the testator was fit to make a statement is of no help as the doctor neither signed the original will nor signed the register of Petition Writer. Such like note written on his letter pad can be written later on. Even the Petition Writer did not mention the place of scribing the document in his register. 17. No Ration Card, Voter Card, Joint Photograph of the beneficiary family or any other document has been brought on record to prove that Smt Jeoni was residing with Nachhattar Singh or that he or his family was rendering services to her. No special reason has been mentioned in the will to exclude the other heirs. It is not disputed that Smt Jeoni was cremated at RSA No.3046 of 1985 7 village Daula, but there is no evidence regarding her place of death or whether she died in the hospital or at home. But one thing is clear, that on 4.10.1980, Smt Jeoni was unconscious and was not in sound disposing mind. She may be in the hospital or in village. But in order to strength the will, the beneficiary had tried to take help of a medical practitioner, whose brother in law and the beneficiary of will were working in the same department i.e. the Punjab State Electricity Board. Mark ‘A’ was neither pleaded in the written statement nor mentioned in the list of reliance of documents by the defendant. It was created later on during the pendency of the suit on someone’s advice. For the first time it was produced in Court on 13.4.1983 the date on which Dr Shadi Lal appeared as DW3, in the witness box. 18. This court agrees with the argument of the learned counsel for the appellant that the will is not necessarily to be registered, but in this case, non registration of the will is a suspicious circumstances as the marginal witness deposed that Smt Jeoni wished that the will be got registered. Smt Jeoni had been shown to be in self cultivation of the land in jamabandi Ex.P.1. So, it can be inferred that she was residing at her in laws village. She might be visiting her parental house. If she was permanent resident of her parental village Daula, then why no Ration Card, Voter Card or any document was not forthcoming to corroborate the will. Neither any respectable of the village nor any other relative has been produced by the defendant to support his version that the testator was residing with him for many years. None of the family member of Nachhattar Singh stepped into the witness box to prove that they had been rendering services to Smt Jeoni during her life time and in lieu of services rendered to her, she had executed the will in favour of Nachhattar Singh defendant. A close scrutiny of the statement of DW2-Pritam Singh reveals that he is not a truthful witness. He deposed that Jeoni had brought RSA No.3046 of 1985 8 him to Gidderbaha for executing a Will and that they came to the hospital of Dr. Shadi Lal who examined her and then left. Then Lal Chand scribe came and scribed the Will Ex.D1 at the instance of Jeoni in favour of Nachhattar Singh. In cross examination, this witness stated that Jeoni had come to his house one day earlier on foot and on the next day they went by train to Gidderbaha reaching there at 11.00 a.m. and further that Jeoni had asked him to get the Will registered. He further deposed that Jeoni was alright though little weak and that they had gone on foot first to the shop of Dr. Shadi Lal but he was not there and then they went to his hospital on foot and the hospital is at a distance of 400-500 Karams from the shop which is in the Mandi. If Jeoni could cover a distance of 400-500 Karams on foot, then there was no difficulty in fulfilling her wish for getting the Will registered. On the other hand, the version given by Jarnail Singh in his application Ex.P3 that Jeoni was unconscious and admitted in the hospital at Gidderbaha appears to be more probable and truthful, particularly when Jeoni died on the next day i.e. 05.10.1980. It may be observed that according to Dr. Shadi Lal, DW3, Jeoni was admitted in his hospital and the certificate Mark 1 issued by him also mentions that she was admitted in the hospital but surprisingly no hospital record or any register showing her admission in the hospital was produced by the defendant. The said record/discharge certificate would have proved as to what was the ailment from which Jeoni was suffering and what was the condition of her health and what treatment was given to her. The withholding of said record casts serious doubt regarding the fitness of Jeoni to execute a Will. The testimony of Lal Chand DW1, Pritam Singh Lambardar DW2 and Dr Shadi Lal Puri DW3, are not worthy of credence to prove the will Ex.D.1, which are disbelieved. RSA No.3046 of 1985 9 19. No other point or substantial question of law arises for determination in this regular second appeal. As already observed, the concurrent findings of both the Courts below are correct and based on sound reasoning. The concurrent findings of both the Courts below are not perverse. 20. Keeping in view the above circumstances, this court is of the opinion that the judgments and decrees of both the court below are not perverse. Both the courts below have rightly ignored the will Ex.D.1 which is surrounded by suspicious circumstances. Hence, this regular second appeal No.3046 of 1985 fails and is dismissed. 21. Before parting with this judgment, it is necessary to mention here that Smt Jeoni died in the year 1980. The plaintiff (respondent herein) could not enjoy the fruits of her inheritance and died during the pendency of this appeal. Vide order dated 31.10.1985, while issuing notice of motion, this Court stayed the dispossession till further orders. The appeal was admitted on 5.12.1985 and the operation of the impugned judgment and decree was stayed subject to the appellant’s furnishing security for mesne profits to the satisfaction of the executing court within two months. It is observed that while executing the decree for possession of the land, the learned executing court will ensure that mesne profits are restored to the legal representatives of Smt Jeoni. March 3, 2011 (JITENDRA CHAUHAN) atulsethi JUDGE Note : Whether to be referred to Reporter : Yes