R.S.A. No. 441 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 441 of 2009 (O&M) Date of decision : 5.7.2010 ... Satnam Singh and another ................Appellants vs. Rajwant Kaur @ Rajjo and another .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. B.R. Mahajan, Advocate for the appellants Sh. Vineet Sharma, Advocate for respondent No.1. ... K.C. Puri, J. This is Second Regular Appeal preferred by defendant- appellants against the judgment dated 6.9.2008 passed by Additional District Judge (Adhoc), Fast Track Court, Gurdaspur, vide which the appeal preferred by the present appellants against the judgment dated 20.12.1999 passed by Sh. Harjinder Pal Singh, Additional Civil Judge (Senior Division), Batala, decreeing the suit of the plaintiff, was dismissed. Briefly the case of the plaintiff set forth in the plaint is that suit land originally belong to Kehar Singh son of Jamiat Singh who R.S.A. No. 441 of 2009 -2- had died about few years earlier to the filing of the suit leaving behind his sons. Beant Singh and Jaswant Singh (now deceased) had inherited the share of the estate of said Kehar Singh in equal shares. Satnam Singh and Kulwant Singh, grandsons of Kehar Singh were not having any right or interest in the suit property. Said defendants were alleging execution of Will in their favour by Kehar Singh deceased which was impugned to be illegal, null and void document being result of forgery and fabricated. Mutation done, if any, on the basis of said Will was also alleged to be illegal, null and void. The defendants were requested many a times to admit the claim of the plaintiff, but their adamant refusal had left the plaintiff with no other alternative, but to file the suit. Suit was contested by the defendants in two sets. Defendant No.1 filed separate written statement taking up the preliminary objections that the plaintiff had got no right or interest in the suit property and also that she was estopped by her act and conduct to file the suit against the defendants. The plaintiff and her father knew about the execution of valid Will dated 7.1.1977 duly executed by Kehar Singh, while he was having sound and disposing mind. Accordingly, mutation No. 2600 in respect of the suit property was sanctioned in favour of defendants Nos. 2 and 3 in the presence of defendant No.1 and Jaswant Singh @ Jassa Singh, who admitted the correctness of the Will dated 7.1.1977 before the Revenue Authorities at the time of sanctioning of the said mutation. Said Jaswant Singh @ Jassa Singh died in August, 1995 and till his death, he had never challenged said mutation No. 2600 regarding the estate of deceased R.S.A. No. 441 of 2009 -3- Kehar Singh. It was also objected that the suit was time barred. On merits, the relationship between the parties was admitted, but the death as alleged by the plaintiff was denied and it was specifically asserted that said Kehar Singh had died in August, 1977, leaving behind his two sons. It was positively asserted that Will dated 7.1.1977 executed by said Kehar Singh was legal and valid through which he had bequeathed his property to defendants No. 2 and 3 in equal shares. The plaintiff was frequently meeting the defendants and she was having full knowledge of the Will dated 7.1.1977 and also of the sanctioning of mutation No. 2600. Defendants No. 2 and 3 got admitted Darshan Kaur mother of the plaintiff, in Lal Hospital, Amritsar for her treatment and had spent about Rs.30,000/- on her illness. Said Darshan Kaur died in the year 1993 and her last rites were performed by defendants No. 2 and 3 and they also performed the last rites of Jaswant Singh, father of the plaintiff. All other allegations made in the plaint were denied. Defendants No. 2 and 3 had filed separate written statement but had taken almost similar stand as was taken up by defendant No.1 in his separate written statement. It was also prayed by defendants No. 2 and 3 that the suit be dismissed. Replications were filed separately for each written statement controverting the allegations made in the written statements and reiterating those made in the plaint. From the pleadings of the parties, learned trial Court framed the following issues:- 1. Whether the estate of Kehar Singh was inherited by R.S.A. No. 441 of 2009 -4- defendant No. 1 and Jaswant Singh deceased? OPP. 2. Whether the suit is within limitation ? OPP. 3. Whether the plaintiff is estopped by her act and conduct to file the present suit of her deceased father? OPD 4. Whether Kehar Singh deceased had executed a valid Will in favour of defendants Nos. 2 and 3 ? OPD 5. Whether the plaintiff is entitled to possession as prayed for ? OPP 6. Relief. The plaintiff examined PW-1 Sardara Singh Parmar, Document Expert, PW-2 Mehar Singh, PW-3 Mukhtiar Singh and Rajwant Kaur – plaintiff herself appeared as her own witness. On the other hand defendants examined DW-1 Harpinder Singh, DW-2 Ganga Singh, DW-3 Mukhtiar Singh, DW-4 Satnam Singh, DW-5 Beant Singh, DW-6 Darbara Singh, DW-7 Om Parkash – deed writer, DW-8 Waryam Singh and closed the evidence after tendering certain documents. Learned trial Court has taken issues No. 1 and 4 together and after appraisal of the evidence returned the finding on issue No. 1 in favour of the plaintiff, while issue No.4 was decided against the defendants. Issue No. 5 was also decided in favour of the plaintiff. Whereas issues No. 2 and 3 were decided against the defendants. In view of finding on these issues, the suit of the plaintiff for joint possession to the extent of ½ share of the land left by Kehar Singh, was decreed. Feeling dissatisfied with the said judgment dated 20.12.1999, R.S.A. No. 441 of 2009 -5- passed by Sh.Harjinder Pal Singh, Additional Civil Judge (Senior Division), Batala, the defendants preferred the appeal and the same was dismissed vide judgment dated 6.9.2008, passed by Sh. Harbhajan Dass, Additional District Judge (Adhoc), Fast Track Court, Gurdaspur. Feeling dissatisfied with the abovesaid judgment dated 20.12.1999, and judgment dated 6.9.2008, the present regular second appeal has been preferred. Notice of the appeal was given to the plaintiff, who has appeared through Sh. Vineet Sharma, Advocate. Record of the Courts below was summoned. As per grounds of appeal, according to the defendant-appellants, following substantial questions of law have arisen:- i) Whether the judgment and decree of both the Courts below suffer from perversity, as the Will dated 7.1.1977 Exhibit DW-1 has been ignored on the ground of alleged suspicious circumstances, which are non-existent? ii) Whether the judgment and decree of the Courts below suffer from perversity being based on misreading of evidence and ignoring material evidence on record and as such cannot be sustained? Iii) Whether the order dated 6.9.2007 passed by the Additional District Judge, dismissing the application under Order 6 rule 17 CPC for amendment of written statement suffers from material irregularity and illegality in the exercise of justification and, therefore, cannot be sustained? R.S.A. No. 441 of 2009 -6- iv) Whether the suit filed by the plaintiff respondent was barred by time and findings of the Courts below to the contrary cannot be sustained? Learned counsel for the appellants has submitted that controversy in the present lis revolves around the execution of Will dated 7.1.1977. Both the Courts below have misread and misinterpreted the evidence on the file regarding the execution of the Will. The said Will is dated 7.1.1977 executed by Kehar Singh in favour of his grandsons Satnam Singh and Kulwant Singh – appellants. It is contended that in the villages there is a tendency to keep the property within the family and on that account Kehar Singh executed the Will dated 7.1.1977 in favour of the appellants. The trial Court has ignored the Will on the ground that it is an unregistered document. It is not the requirement of the law that the Will should be required to be registered. Mere fact that Kehar Singh had executed one sale deed, does not lead to the conclusion that Will was required to be registered by Kehar Singh. Kehar Singh was of sound disposing mind at the time of execution of Will. He remained alive for more than 7 months after the execution was made. The mutation on the basis of Will was also attested. Jaswant Singh father of Rajwant Kaur remained alive till 1995 and he has not challenged the Will during the period of his life. There was a reason for ignoring the sons in preference to the grandsons, as according to the Will, the sons of Kehar Singh were not looking after him properly. PW-1 Sardara Singh Parmar, Finger Print Expert, has given a wrong report regarding difference of signatures of Kehar Singh on the Will. R.S.A. No. 441 of 2009 -7- Moreover the report of expert regarding comparison of signatures is not perfect one. So, in these circumstances, the trial Court has wrongly decreed the suit of the plaintiff. No suspicious circumstance has arisen in the execution of the Will by Kehar Singh. So, in these circumstances, both the Courts below should have upheld the Will. In reply to the abovesaid submissions, counsel for the respondent has supported the judgment of both the Courts below. It is contended that the question of execution of Will is a question of fact and in view of concurrent finding of both the Courts below, no ground for interference is made out. Prayer has been made for dismissal of the present appeal. I have given my thoughtful consideration to the rival submissions made by counsel for both the sides and have also gone through the record of the case. Although in the grounds of appeal, the appellants have framed question No. (iii) regarding application under Order 6 Rule 17 CPC and regarding mutation, but during the course of arguments, no argument has been addressed on said question of law. Otherwise also, by the proposed amendment under Order 6 Rule 17 CPC, the appellants want to take the plea that mutation was sanctioned in favour of the appellants in the presence of Beant Singh and Jaswant Singh @ Jassa Singh and that said Jassa Singh never objected about the sanctioning of the said mutation. The appellants wanted to plead through proposed amendment that Kulwant Singh – appellant was adopted by Jassa Singh, father of the plaintiff as he had no son. The appellants want to take this plea for the first time in the first appeal. R.S.A. No. 441 of 2009 -8- Learned Ist Appellate Court has rightly dismissed the application under Order 6 Rule 17 vide order dated 6.9.2008. The valuable right has accrued in favour of the plaintiff after the passing of the decree dated 20.12.1999 and as such that right cannot be taken away by filing application for amendment of written statement which seems to be an afterthought. So far as the limitation is concerned, the suit is well within limitation. The mutation of the inheritance of Kehar Singh was passed in favour of the appellants on 16.1.1985 and the suit was filed on 13.9.1995 i.e. well within 12 years. Otherwise also, there is no period for filing a suit claiming inheritance unless the other party proves the adverse possession. It is not the case of the defendants that they have become owners of the suit property by way of adverse possession. So, in these circumstances, the questions of law Nos. (iii) and (iv) framed by the appellants in the grounds of appeal, stand determined against the appellants. The questions of law Nos. (i) and (ii) raised by the appellants relates to the execution of the Will. The Will is a document which has to take effect after the death of a testator. The question arises whether both the Courts below have misread or misinterpreted the evidence regarding the execution of the Will. The answer to that question is in negative. Both the Courts below have given sufficient grounds and narrated the suspicious circumstances surrounding the Will. The said reasoning given by both the Courts below does not call for any interference. No reasoning has been given for ignoring the plaintiff and wife of deceased Kehar Singh. The plaintiff has R.S.A. No. 441 of 2009 -9- examined PW-1 Sardara Singh Parmar, Document Expert, Phillaur, who has given a definite opinion that disputed signatures Mark Q-1 on the Will Exhibit D-1 dated 7.1.1977 are different from the signatures of Kehar Singh, whose standard signatures are on sale deed dated 19.11.1973 Exhibit DW-7/1. Counsel for the appellants wants to discard his testimony on the ground that he is not a reliable witness. But there is nothing on the file that he is an unreliable witness. The sale deed dated 19.11.1973 Exhibit DW-7/1 has been proved by the appellants themselves. The defendant-appellants could examine any expert to prove the fact that signatures of Kehar Singh appear on the Will, but they have not examined any expert for the reason best known to them, more so when specimen signatures are already on the file produced by the defendants. The trial Court has observed that Kehar Singh knew the value of registered document, as he has executed sale deed Exhibit DW-7/1 and as such he could have registered the Will in favour of the appellants if he so desires. Mere fact that appellants are merely progeny of Kehar Singh, does not prove the execution of the Will. Both the Courts below have held that there is no explanation for getting the mutation attested 7 years after the death of Kehar Singh. That is also a strong circumstance against the execution of the Will. Another circumstance which has come on the record is that mutation was attested not in the village of the appellants, but in another village, which further creates suspicion in the execution of the Will. The appellants have taken a stand that sons of Kehar Singh have not objected the execution of the Will. That argument is repelled by both the Courts below by observing that there R.S.A. No. 441 of 2009 -10- is nothing on the file that Jaswant Singh @ Jassa, father of the plaintiff, was present at the time of execution of the alleged Will. There is a recital in the Will that sons of Kehar Singh have not good relations with him but that fact is contrary to the evidence lead by the appellants themselves. According to the evidence on the file, Jaswant Singh @ Jassa - father of plaintiff and Beant Singh father of the appellants were residing with Kehar Singh. So, there was no occasion for the Kehar Singh to ignore Jassa Singh or his family. It is further mentioned in the Will that appellants have been serving Kehar Singh, but that fact has been belied as both the appellants were minor and were not in a position to serve Kehar Singh. It is nowhere come into evidence that Jaswant Singh @ Jassa father of the plaintiff had the knowledge of mutation in favour of the appellants and as such the argument advanced by counsel for the appellants to the effect that since Jaswant Singh @ Jassa has not challenged the mutation during his life time, is devoid of any legal force. The Will has not been scribed by a regular deed writer to conclude that it was actually executed on the same day, the date appear on the Will. Both the Courts below have also taken into account the wording used in the Will, that the same cannot be scribed by a scribe of the Will being technical in nature. So, in view of the above discussion, the concurrent finding of both the Courts below regarding the fact that appellants have failed to prove the execution of the Will, cannot be interfered into. It cannot be said that both the Courts below have misinterpreted or misread the evidence on the file or has returned a wrong conclusion on the R.S.A. No. 441 of 2009 -11- evidence on the file. The Will is a suspicious document, surrounded by suspicious circumstances, as detailed by both the Courts below. Even the execution of the same is not proved and as such all the questions of law for determination, including questions No. (i) and (ii), stand determined against the appellants. Consequently, the appeal is without any merit and the same stands dismissed. ( K.C. Puri ) 5.7.2010 Judge chugh