R.S.A. No. 198 of 2008 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 198 of 2008 (O&M) Date of Decision : 17.4.2009 Mohan Singh & others .......... Appellants Versus Gurdev Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. R.N. Moudgil, Advocate for the appellants. Mr. Sanjay Gupta, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree, dated 10.10.2007, passed by the learned lower appellate Court, decreeing the suit, filed by the plaintiff / respondent. The plaintiff / respondent brought a suit, claiming that the suit property was jointly owned and possessed, by the parties to the suit as also the sons of the plaintiff, and deceased Banta Singh, who died issueless and unmarried. It was claimed, that plaintiff and defendants were the only legal heirs of deceased Banta Singh, therefore, entitled to the property left by Banta Singh in equal share. It was also claimed that the property is in possession of the parties. It was also the case of the plaintiff that now defendant is trying to R.S.A. No. 198 of 2008 2 set up a will to oust the plaintiff from the property in dispute. On notice having been issued the defendant contested the suit wherein while admitting the relationship, between the parties, he set up a Will dated 12.6.1995 said to have been executed by Banta Singh @ Balwant Singh. It was also pleaded that by way of family arrangement dated 31.10.1972 entered into between the parties, they were put in possession of the share. On the pleadings of the parties, the learned trial Court was pleased to frame the following issues :- 1. Whether the plaintiff is entitled to the permanent injunction as prayed ? OPP 2. Whether the plaintiff is entitled to the declaration as prayed ? OPP 3. Whether Banta Singh has executed a Will in favour of the defendant ? OPP 4. Relief.” The learned trial Court, in view of the evidence led, to prove the execution of the Will decided issue No.3 in favour of the defendant / appellants and dismissed the suit by upholding the Will. The defendant / appellant in order to prove the Will had examined DW-2 Ashwani Kumar Sharma scribe of the Will as well as DW- 3 Jasmer Singh the attesting witness. In appeal, the learned lower appellate Court has been pleased to reverse the finding recorded by the learned trial Court on issue No.3 by holding that the Will was not a genuine document. The finding recorded by R.S.A. No. 198 of 2008 3 the learned lower appellate Court reads as under :- “17. A glimpse of the Will Ex. D1 reveals that the deceased is purported to have signed the same in English. He is purported to have signed as “Balwant Singh”. Ex.DW4/A and Ex. D10 are the documents which have been placed on the file by the defendant himself. These show that on 31.10.1972, the deceased signed them in Punjabi. These documents also show that in Ex. DW4/A, the deceased signed as “Batta Singh” whereas he signed Ex. D10 as “Banta Singh”. Both these documents further reveal that in 1972, when the deceased must be in his late fourtees or early fifties, the deceased signed rather like a person who has never been to School. In other words, he has not signed in fluent Punjabi and at the same time, once he has signed as Batta Singh and on the other document he has signed as Banta Singh. The above said aspect thus indicates that the deceased was not a literate man. Ex.DW4/B is the power of attorney given by the deceased in a case in the Court. The same has been placed on the file by the defendant himself. The said power of attorney has rather been thumb marked by the deceased. It appears to have been thumb marked during the time the deceased is purported to have executed the Will Ex. D1. Thus, all the above said documents indicate that the deceased was not a literate man and that he only knew how to sign in Punjabi. Yet, he is shown to have signed the Will Ex. D1 in English. I am of the opinion that had the deceased been literate and had he known how to R.S.A. No. 198 of 2008 4 read and write English, he would never have preferred to thumb mark power of attorney Ex.DW4/B and he would never have preferred to sign Ex. DW4/A and Ex. D10 like an illiterate man. In the given circumstances, it is doubtful if the deceased has signed Ex. D1. In other words, in the given circumstances, the defendant could explain by bringing it cogent evidence that the deceased know how to read and write English and that he was in the habit of signing in English or that he had a special reason for signing the Will in English only. But no such evidence has been brought in by the defendant. Hence, I hold that it is highly doubtful if the deceased has signed the Will Ex.D1. The Will is required to be ignored on that ground alone. However, the learned Civil Judge has not considered the above said aspect of the matter. 18. It is to be noted that one of the witnesses of the plaintiff has claimed that the deceased knew several languages and that he used to read English Newspaper and at the same time, the defendant asserted that the deceased was a matriculate. I am of the opinion that the manner in which the deceased scribed his name in 1972 on the documents referred to above and the fact that he chose to thumb mark the power of attorney above said, leave no ground for suspicion that the deceased was not literate and that he knew only how to sign in Punjabi. Hence, the above said mere oral assertions of the witnesses fail to establish that the deceased knew how to sign in English or that he was a literate man. R.S.A. No. 198 of 2008 5 19. As stated above, the documents Ex. DW4/A and Ex. D10 were prepared on 31.10.1972. On both these documents, not only the deceased has been referred to as Banta Singh, but , the deceased has also himself tried to sign as Banta Singh only. On the power of attorney Ex. DW4/A also, he has been referred to as Banta Singh. Ex. D11 is a suit filed by the defendant against the plaintiff and the deceased Banta Singh. Herein also, the deceased has been referred to as Banta Singh only. While appearing as PW-1, even the plaintiff has referred to the deceased only as Banta Singh. Thus, it is obvious that the deceased was not only known as Banta Singh, but, he also used to take pride in addressing himself as Banta Singh. Yet, in the Will Ex. D1, he is supposed to have signed as Balwant Singh and not as Banta Singh. I am of the opinion that the above said circumstance also makes the Will doubtful. But, the said suspicious circumstance has not been explained by the defendant. 20. Ex. D14 is the title of the suit placed on the file by the defendant himself. It is a title of the suit filed by the defendant against the present plaintiff and the deceased Banta Singh. The plaint and the written statement have not been placed on the file. But, a judgment Ex. PX has been placed on the file which is purported to have arisen from an appeal filed by the present plaintiff in the above said suit of the defendant. A perusal of the above said judgment indicates that the above said suit was filed by the defendant against the present plaintiff and the deceased and in the above said suit, both R.S.A. No. 198 of 2008 6 the plaintiff and the deceased had preferred a joint written statement. Thus, in the above said manner,it stands indicated that the deceased had no ill will against the present plaintiff. Rather, it appears that he had faith in the present plaintiff. In the given circumstances, it is strange that though the deceased was depriving the plaintiff of his natural right of inheriting the property of the deceased, yet, he did not deem it necessary even to make a mention of the plaintiff in the Will Ex. D1. Rather, in the given circumstances, the deceased was required to explain as to why he was depriving his brother of the right to inherit the estate of the deceased. Since, no reason in the Will Ex. D1 has been given for disinheriting the plaintiff, therefore, on that account also, the Will has to be held as doubtful. 21. If the Will Ex. D1 is to be believed, then, the deceased has bequeathed his entire property of village Dadiana as well on the defendant. Yet, when the defendant entered the witness box as DW-4, he conceded that the said land of the deceased situated at village Dadiana has been shared by the parties equally and that even the estate of Dadiana has been mutated in the names of the parties in equal shares. Had the deceased executed the Will Ex. D1, the defendant would never have allowed the plaintiff to share the deceased's land situated at village Dadiana. What to talk of not sharing the land of village Dadiana, the defendant has not even taken the trouble of challenging the mutation of the land of the deceased situated at village Dadiana. The above R.S.A. No. 198 of 2008 7 said conduct of the defendant also renders the Will doubtful. 22. It is agreed that a litigation was pending between the present parties at the time of the death of the deceased Bant Singh. It is also agreed that the deceased was also a party to the said litigation. The defendant admitted in his cross- examination that he did not set up the said Will in these proceedings. He also did not explain as to why he did not bring out the Will during those proceedings. It is to be noted that the defendant has admitted in his cross-examination that he collected the Will on the day it was executed. That way, had the Will been in possession of the defendant, it was just natural for him to set up the said Will in those early proceedings. The failure of t he defendant to set up the Will in the said earlier litigation also renders the Will doubtful. 23. The Will is supposed to have been executed in the Court Complex. The defendant has also claimed that the deceased had the intention of getting the same registered. The Will was got typed from DW-2 who is himself an Advocate. Understandably, the Advocate must be knowing that in case the Will was required to be registered, at least two copies thereof were required. Yet, the only attesting witness DW-3 has claimed that only one copy i.e., Ex. D1 was prepared. Hence, the defendant cannot be believed that the deceased wanted to have the Will registered, but, the same could not be got registered, as the Sub Registrar by that time had left his office.” R.S.A. No. 198 of 2008 8 The learned counsel for the appellants contends, that the appeal raises the following substantial questions of law for consideration by this Court :- 1. Whether the learned lower appellate Court made out entirely a different case to non-suit the defendant / appellant ? 2. Whether the findings recorded by the learned lower appellate Court are outcome of misreading of evidence, and based on conjunctures and surmises, thus, perverse ? In support of the substantial questions of law, referred to above, the learned counsel for the appellants contends, that in the case the only plea taken against the Will, was that it was a forged and fabricated document. No evidence was led by the plaintiff, to prove in support that the Will was forged and fabricated document. Whereas, the appellant / defendant had examined the scribe, as well as the attesting witness to prove the due execution of the Will and furthermore their evidence was not shattered, in the cross-examination. The contention of the learned counsel for the appellants further is that it was not case of the plaintiff that the Will, was surrounded by suspicious circumstances as held by the learned lower appellate Court. Therefore, the judgment and decree passed by the learned lower appellate Court cannot be sustained as altogether a new case has been made out, which is beyond pleadings. On consideration, I find no force in the contentions raised by R.S.A. No. 198 of 2008 9 the learned counsel for the appellants. The onus to prove, that Banta Singh had executed a valid Will, was on the defendant / appellant. though he did prove the execution of Will by examining the scribe and attesting witness, but he failed to explain the suspicious circumstances surrounding the Will. It is well settled law, that it is for the propounder of the Will to prove the execution of the Will as well as to explain suspicious circumstances. The reading of the judgment of the learned lower appellate Court would show that the suspicious circumstances taken note of by the learned lower appellate Court were glaring circumstances which needed an explanation by the defendant / appellant. However, appellant failed to explain the circumstances. The contention of the learned counsel for the appellants cannot be accepted, that a new case has been made out by the learned lower appellate, Court which is beyond the pleadings. The Will was disputed by the plaintiff / respondent, onus to prove the Will was on the defendant appellant. The learned lower appellate Court in the circumstances rightly held that the defendant / appellant failed to explain the suspicious circumstances, and rejected the Will for the reasons mentioned above. The first substantial question of law, therefore, is answered against the appellants and it is held, that no new case has been made out by the learned lower appellate Court as contended. It was for appellant to explain suspicious circumstance surrounding the Will. It also cannot be said, that the findings recorded by the learned lower appellate Court are outcome of misreading of evidence, and is based R.S.A. No. 198 of 2008 10 on conjunctures and surmises. The evidence taken note of is a documentary evidence which was led by the appellant / defendant, himself. Wherein it was proved that the deceased used to sign in the Punjabi or thumb mark the documents. The Will was only document, signed in English showing the signatures in running hand that too, in the name of Balwant Singh. Whereas in none of the documents executant had described himself as Balwant Singh. Therefore, it cannot be said that the judgment and decree passed by the learned lower appellate Court is based on misreading of evidence or is based on conjunctures and surmises, as is contended. Especially when suspicious circumstances referred to by the learned lower appellate Court are in view of the documentary evidence, led by defendant / appellant. No ground is made out to interfere with the findings recorded by the learned lower appellate Court, the substantial questions of law are answered against the appellants. No merit. Dismissed. 17.4.2009 ( VINOD K. SHARMA ) 'sp' JUDGE