RSA No.742 of 2008(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.2375-C of 2008 & RSA No.742 of 2008 Decided on : 23.10.2009 Bant Kaur @ Bans Kaur ... Appellant versus Harbhajan Kaur & others ...Respondents CORAM : HON'BLE MR. JUSTICE AJAY TEWARI Present : Mr. Jagdish Manchanda, Advocate for the appellant. Mr. Hardeep Singh, 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 the Digest? AJAY TEWARI, J. (ORAL) This appeal has been filed against the concurrent judgments of the Courts below decreeing the suit filed by the respondent No.1 that she has inherited the property of Lal Singh to the exclusion of the appellants & respondents No.2 to 4. It deserves to be mentioned here that the Will propounded by the respondent No.1 was accepted by the mother and the two sisters (respondents No.2 to 4) and it is only the appellant who disputed the same. The following questions have been proposed: (a) Whether the finding given by the ld. Courts below while decreeing the suit as well as dismissing the appeal of the present appellant is illegal, wholly without jurisdiction and liable to be set aside? (b) Whether the suit of the present respondent No.1 RSA No.742 of 2008(O&M) -2- was maintainable by challenging the order dt. 15.11.2000 passed by the ld. Collector Revenue Authorities as the jurisdiction of civil court is barred under the provision of Punjab Land Revenue Act? (c) Whether the appellant is entitled to the property as per her share being daughter of deceased Lal Singh as the property was ancestral one? (d) Whether the suit filed by the respondent No.1 for declaration is maintainable or not? The questions argued by the learned counsel for the appellant are questions No. (a), (b) & (d). It would be seen that question No.(a) is pure question of fact. Solitary argument of the learned counsel for the appellant is that the testator did not mention the fact that the appellant was also his daughter. He has also relied upon the decision of this Court in Nimbo & others vs. Satyabir Singh, reported as 1995 Volume 1 Civil Court Cases 224, wherein this Court held as follows: “The appellants highlighted the following as suspicious circumstances (i) active part played by Satbir – a beneficiary at the time of execution of the Will; (ii) no reason has been assigned for disinheriting the plaintiffs who were legally entitled to succeed as per provisions of the Hindu Succession Act; (iii) Statement of the witness that they have no knowledge of the contents of the Will nor the same was read over to them; and (iv) the language of the Will. Surta PW13 an attesting witness of the Will has deposed that the contents of the Will were not read over to him and Satyabir made me thumb-mark the Will. He RSA No.742 of 2008(O&M) -3- further stated that Smt. Sarupi though was present at that time, but she did not put her thumb impression in his presence. He has further stated that the contents of the Will were not read over to her. Even with regard to the thumb impressions of other witnesses, he has stated that they had already affixed their thumb impressions before he came present. Significantly, this witness has not been cross- examined with regard to the above noted statement relating to the presence of Satyabir, his active role in the execution of the Will and that the contents of the will were not read over to him nor Smt. Sarupi or other witnesses thumb marked in her presence. Tara Chand, DW5, another witness has deposed that he neither understands Urdu, Hindi or English. He has also stated that he does not know the language in which the petition writer wrote this document. To somewhat similar effect is the statement of Ram Kishan DW6. On perusal of the Will, it is clear that no reason has been assigned for disinheriting the legal heirs. Except for the oral evidence, there is no documentary evidence on record to prove that Smt. Sarupi had been residing with Satyabir who had also been looking after her in her old age. The decisions of this court as well as the apex court are quite consistent that it is propounder who had to explain the suspicious circumstances surrounding the Will, especially when he was present at the time of the execution of the Will and also took an active part. In the present case, no explanation is forthcoming. The will if examined in the context of earlier litigation between Smt. Sarupiand Satyabir ultimately leading to partitioning of their joint holding vide order dt. 12.03.1987 further raised an element of doubt that the will was executed under pressure. Had relations RSA No.742 of 2008(O&M) -4- between the parties been cordial as stated by the defendant, there could hardly be any ground for partitioning of the joint Khewat. There is no clear evidence on record that Smt. Sarupi and Satyabir had been residing together. In fact, as per copy of the ration card adduced in evidence by the plaintiffs, member/members named belonging to the plaintiff's family are shown in the ration cards.” It would be seen that in that case there were many suspicious circumstances apart from the non-mentioning of the legal heirs. He has further relied upon the decision of Hon'ble Supreme Court in the case of Joseph Antony Lazarus (dead) by LRs vs. A.J.Francis, reported as 2006(2) RCR (Civil) page 570, which held as follows: “It will be injudicious to suggest, as has been held by the ld. Single Judge of the Madras High Court that there are no suspicious circumstances surrounding the execution and registration of the Will. It is difficult to understand as to why the testatrix omitted to mention two of her sons in the Will although she has taken great pains to mention the fact that the appellant herein and her other son, Cecil Lazarus, had looked after her and had paid all the installments towards the house property, even though Cecil Lazarus had gone to Sharjah as far as back as in 1963 and only the appellant was living with her in the house being the subject matter of the bequest in the Will. That the testatrix was of very advanced age is admitted. It is also established that she had suffered a fall and had broken her thigh bone twice and that she had to be operated on both the occasions and that she was keeping indifferent health from after her first fall. That by itself may not be sufficient to prove that RSA No.742 of 2008(O&M) -5- she was incapable of executing the will, but the defendant's contention that the appellant took advantage of the mishap and the subsequent dependence of the testatrix to influence her to make the will in his favour and in favour of another brother who was not even residing in India will have to be taken into consideration while deciding the aforesaid question. Apart from the above circumstances, what is perhaps of even more significance is the existence of the two signatures on each page of the Will, said to be those of the testatrix. It may be remembered that while the Will is dated 5.07.1979, the same was registered on 07.07.1980 after more than a year. Except for the Will, no other document has been produced by the appellant to indicate that the deceased ever signed her name as Mrs. M.Solomon Lazarus notwithstanding the fact that it was attempted to be explained that her middle name was Martha and that at times she signed her name as Mrs. Solomon Lazarus and at other times simply as Mrs.Solomon Lazarus. Having regard to the peculiarity of the explanation sought to be given, we examined the photocopy of the Will which was in the records and to the naked eye it is quite evident that the two signatures are entirely different and have little or no likeness whatsoever. The last and perhaps the most significant aspect of this matter is the failure of the appellant to examine the learned advocate who is said to have drafted the Will on the instructions of the testatrix and the non- examination of the Sub Registrar before whom the Will is said to have been presented for registration. Both the said witnesses could have conclusively proved the facts relating to the preparation, execution and RSA No.742 of 2008(O&M) -6- registration of the Will. In the absence of any evidence, we are unable to ascertain as to whether the Will was ever read over and explained to the testatrix before she is said to have executed and presented the same for registration.” Here also it would be seen that the Hon'ble Supreme Court relied upon a series of circumstances. In the present case, the Will clearly mentions that Lal Singh wanted Bhajan Kaur to inherit the entire property because she served him. Lal Singh has specifically mentioned that earlier a Will was executed in favour of respondent No.2 and that he was cancelling the same. The fact that the Will was executed in favour of respondent No.1 because she served the Lal Singh, was ample reason for excluding other legal heirs. The Lower Appellate Court has also considered the evidence that the appellant had actually gotten married about 40 years ago against the wishes of her father and is residing in Uttar Pradesh. The substance of the entire discussion is that any question regarding execution of a Will is essentially a question of fact. What may be a crucial suspicious circumstance in one case may lose its importance in another case where there is other competing evidence which outweighs the suspicious circumstances. Ld. Courts have considered the fact that none of the other legal heirs of Lal Singh disputed the Will. Learned counsel has not been able to persuade me that the findings recorded are either based on no evidence or on such misreading of evidence, which render them so perverse as to justify RSA No.742 of 2008(O&M) -7- interference under Section 100 of CPC. Questions No.(b) & (d) are inter related. Learned counsel for the appellant states that under Section 155 of the Punjab Land Revenue Act, the order of Revenue Court cannot be challenged in the Civil Court and therefore, the final order of mutation cannot be challenged by the respondent. Needless to say mutation cannot confer title & in fact, there was no need for the respondent even to challenge the order of mutation. With these observations, this appeal and application for stay are dismissed. October 23, 2009 (AJAY TEWARI) sonia JUDGE