R.S.A. No. 1022 of 1985 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1022 of 1985 Date of Decision : 3.3.2010 Dharma (dead) through L.Rs. & another .......... Appellants Versus Taroo (dead) through L.R. ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. M.S. Kang, Advocate for the appellants. Mr. Narinder Lucky, Advocate for Mr. J.B.S. Gill, Advocate for the respondent. **** VINOD K. SHARMA, J. This regular second appeal is directed against the judgment and decree dated 19.1985, passed by the learned lower appellate Court, vide which suit for declaration, filed by the plaintiff / appellants was dismissed. Plaintiff / appellants filed a suit on the pleadings, that the plaintiffs Dharma and Dewan are sons of Attra. The suit was filed against Taroo son of Partapo son of Attra, claiming therein that the plaintiffs were owners in possession of the estate left by Amroo son of Attra to the extent of 1/4th share. It was pleaded by the plaintiff / appellants, that Sh. Amroo son of Attra was owner to the extent of 1/4th share, in the land mentioned in the headnote of the plaint. He died on 16.5.1981, leaving behind plaintiffs R.S.A. No. 1022 of 1985 2 as his only legal heirs being his real brothers. The Plaintiff / appellants, claimed to be owner in possession of the suit land, falling to the share of Amroo. Partapa and Dhanna sons of Attra had died much prior to Amroo. Another son Rakha of Attra also died 5 years prior. The case of the plaintiff / appellants further was that defendant had started claiming ownership on the basis of Will, alleged to have been executed in his favour by Amroo deceased. The mutation on the basis of the Will was also sanctioned. It was pleaded, that the Will was not binding on the plaintiff / appellants because it was a result of fraud and fabrication, in connivance with the attesting witnesses. The suit was contested by the defendant / respondent, by raising a preliminary objection, that the plaintiffs were not in possession, so the suit for declaration and injunction was not maintainable. On merits, it was pleaded by the defendant / respondent, that Amroo had executed a valid Will in his favour out of natural love and affection. Under the Will the property falling to the share of Amroo was bequeathed to the defendant / respondent. The suit was said to be false and frivolous, therefore, liable to be dismissed. In replication, the averments made in the plaint were reiterated and those of the written statement were denied. On the pleadings of the parties, the learned trial Court framed the following issues:- “1. Whether plaintiffs are the only legal heirs of deceased Amroo? OPP R.S.A. No. 1022 of 1985 3 2. Whether plaintiffs are in possession of the suit, if not to what effect?OP Parties 3. Whether Amroo deceased executed a valid Will in favour of the defendant?OPD 4. Whether the plaintiffs are estopped from challenging the Will by their act and conduct?OPD 5. Relief.” On appreciation of evidence, the learned trial Court held that Partapa, Rakha, Amroo were brothers of Dharma and Dewan plaintiffs. The defendant Taroo was son of Partapa deceased. Amroo son of Attra deceased was owner of 1/4th share in the suit land, mentioned in the heading of the plaint. The Court held, that it was not disputed that Amroo died issueless and widowless. The plaintiffs were the real brothers of Amroo deceased, therefore, were legal heirs of first degree, thus, entitled to inherit his share. Taroo defendant / respondent had claimed inheritance on the basis of Will Ex. D-1. To prove this Will the defendant / respondent had examined Dev Raj, Karam Chand and Gurdev Singh i.e. scribe and attesting witnesses of the Will. One of the attesting witnesses Dev Raj had deposed, that Amroo deceased was residing with Partapa and Taroo for the last 20/25 years and was being looked after by them. The Will Ex. D-1 was scribed at the instance of Amroo, which was read over to him, and his thumb mark was taken, in token of its correctness. The Will was attested on the asking of R.S.A. No. 1022 of 1985 4 Amroo. In cross-examination he stated, that Amroo had died at the age of 40/45 years. He also admitted, that Amroo remained ill for 6 months before his death. He was suffering from cancer, he could speak, but was unable to take his meal. Pad, pen and the paper on which the Will was scribed, were in possession of Amroo. His evidence was discussed in detail qua execution of the Will, by the learned trial Court. The learned trial Court also took note of the fact, that the attesting witness had admitted that Amroo had executed a pronote in favour of Dewan for Rs. 1,000/- (Rupees one thousand only). The money was taken by Amroo for his treatment. The learned Court held, that in Ex. D-1, there was no mention of the pronote. The suggestion put to him, that the pronote was executed by Amroo, after the execution of the Will was admitted. The another attesting witness of Ex.D-1, was said to be of different village. According to him, age of Amroo was 60 years, at the time of execution of the Will. The defendant, in order to prove the Will, examined Hand Writing Expert Sh. P.S. Ahuja, who compared the thumb impression of Amroo on the Will with his thumb impression on the mortgage deed dated 1.6.1965. According to the Hand Writing Expert, there were only 3 points of similarity on the two thumb impressions. He submitted his report Ex. DW5/A. However, he did not opine regarding thumb impression on the Will, as part of it was said to be smudged with ink. The learned trial Court on appreciation of evidence, took note of contradiction in the statement of the attesting witnesses, with regard to R.S.A. No. 1022 of 1985 5 the use of pen and also as to how it could be believed that Amroo was ready with pad, pen and paper for execution of the Will, and therefore held, that the Will was surrounded by suspicious circumstances. The learned trial Court also held, that normally, a patient of cancer is under unbearable pain, therefore, it could not be believed, that he could make arrangement for executing the Will. The learned Court also held, that the age of Amroo as described by Dev Raj, was different from the one mentioned in the Will. According to the attesting witness, Amroo was 40-45 years of age while in Ex. D-1 his age was shown as 80 years. The learned trial Court came to the conclusion, that one of the attesting witness i.e. Dev Raj, either had not seen Amroo at the time of execution of the Will or could not assess his age correctly. The another attesting witness Gurdev Singh, was said to be from another village, therefore, the learned trial Court came to the conclusion, that the Will was not free from suspicious circumstances, and not a genuine Will. The Will could not be said, to have been executed, by Amroo in sound disposing mind. The learned trial Court held, that it seemed unreasonable, as the patient of cancer cannot be said to be in free state of mind in view of pain and stress. Issue No.1 was decided in favour of the plaintiffs / appellant, and issue No.3 was decided against the defendant. On issue No.2, the plaintiff / appellants were held to be owner in possession of the suit land as co-sharer. Issue No.4, was decided against defendant / respondent for want of evidence. R.S.A. No. 1022 of 1985 6 In view of the findings recorded above, the suit filed by the plaintiff / appellants was decreed, by declaring them to be owners in possession of the land qua the share of Amroo, as mentioned in the heading of the plaint. Defendant / respondent preferred an appeal. The learned Addl. District Judge, Hoshiarpur reversed the findings recorded by the learned trial Court on issue No.3, by scanning the evidence and in view of the law laid down by this Court in the case of Ajit Singh Vs. Mada Singh I.L.R. 1971(II) 246. The learned lower appellate Court came to the conclusion, that the defendant / respondent examined the scribe and two marginal witnesses regarding execution of the Will. There was no contradiction in the statement of these witnesses, nor there was anything on record to show that the witnesses had friendly leaning towards the defendant / respondent so as to depose falsely in his favour, or become a party to make false Will. The learned lower appellate Court was of the view, that the testimony of attesting witnesses regarding execution of the Will, was to be given due weight, even if the expert evidence was not helpful. The learned lower appellate Court held, that two suspicious circumstances pointed out by the learned trial Court were not sufficient to disbelieve the execution of the Will. The learned lower appellate Court also considered the statement of Sh. Karam Singh, wherein he had deposed regarding taking of loan of Rs. 1,000/- (Rupees one thousand only) from the plaintiff / appellants, and execution of pronote in his favour, to hold that R.S.A. No. 1022 of 1985 7 there was no love lost between plaintiffs and Amroo. The plaintiff / appellant met with expenses of treatment plaintiff and Diwan got a pronote executed from Amroo. Therefore, in such circumstances, if case property, was not bequeathed to them, it could not be a ground to reject the Will. The finding of the learned trial Court on issue No.3 was reversed and the suit filed by the plaintiff / appellants was dismissed. The learned counsel for the appellants contended, that this appeal raises the following substantial questions of law :- 1. Whether the learned lower appellate Court could reverse the judgment and decree passed by the learned trial Court without meeting with the reasoning given by the learned trial Court to reject the Will ? 2. Whether the judgment and decree passed by the learned lower appellate Court is outcome of misreading of the evidence, therefore, perverse? In support of the first substantial question of law, Mr. M.S. Kang, learned counsel for the appellants contended, that the learned trial Court had rejected the Will by holding, that the Will was surrounded by the suspicious circumstances, which the propounder of the Will was not able to explain, which were :- (i) That Amroo was suffering from disease like throat cancer, therefore, he was unable to dictate the Will on 15.5.1981, when he died on R.S.A. No. 1022 of 1985 8 16.5.1981, in view of the evidence on record showing that he could not speak and had remained senseless for about 15 days before his death. The last ceremonies of Amroo were also performed by the plaintiffs. (ii) Dev Raj DW-2 while deposing admitted that Amroo was unable to take his meals, however, he stated that he could speak, therefore, the learned trial Court held, that a patient of throat cancer could not speak and dictate a Will, which was a suspicious circumstance. (iii) No mention about the pronote, which was executed by the executant, of the Will. This, however may not be a suspicious circumstance, as rightly held by the learned lower appellate Court. (iv) That the Will was silent about the natural heirs i.e. brother of Amroo, though they had good relations, as admittedly the expenses for treatment of Amroo was met by the plaintiffs. (v) Dev Raj DW-2 had deposed that the signatures on Will were obtained with the same pen with which the Will was scribed, but it was apparent to the naked eye that the signatures of Dev Raj were in different ink. R.S.A. No. 1022 of 1985 9 (vi) That the thumb impression of Amroo and Labh Singh, one of the attesting witnesses were with different pad ink, though, as per the statement of the attesting witnesses only one pad was used for obtaining the thumb impression. (vii) Mr. Dev Raj, deposed the age of the executant to be 40/45 years, whereas in the Will the age of the executant was given as 80 years, which leads to the conclusion that the attesting witness had not seen the executant at the time of execution of the Will. (viii) The other attesting witness was Gurdev Singh, who belonged to another village. No reasons were forthcoming as to how he was called and reasons for calling him. The learned lower appellate Court while reversing the judgment of the learned trial Court did not meet with any of the suspicious circumstances, pointed out by the learned trial Court. The learned lower appellate Court accepted the Will only by recording, that the execution of the Will stood proved from the scribe and two attesting witnesses, and there was no contradiction in their statements. The findings of the learned lower appellate Court, on the face of it, is outcome of misreading of evidence, as there were material contradictions in the statements of the attesting witnesses. The judgment of the learned lower appellate Court, therefore, is R.S.A. No. 1022 of 1985 10 based on presumption, which otherwise is contrary to the positive evidence on record. Mr. Narinder Lucky, learned counsel appearing on behalf of the respondent contended, that the judgment and decree passed by the learned lower appellate Court is based on appreciation of evidence and no fault can be found with the finding of the learned appellate Court on issue No.3. The contention of the learned counsel for the respondent was that merely because the executant was suffering from illness could not be a ground to reject the appeal, nor the non-mentioning of execution of pronote, could not be a ground to hold it to be a suspicious circumstance. The contention of the learned counsel for the respondent was that merely because the hand writing expert did not prove the thumb impression, it could not be a ground to reject the Will, as its execution was duly proved, as held by the learned lower appellate Court. On consideration, I find force in the contentions raised by the learned counsel for the appellants. The learned lower appellate Court has not met the reasoning given by the learned trial Court to reject the Will. The Will was surrounded by the suspicious circumstances. The very fact that evidence on record showed, that the executant was unconscious for 15-20 days before his death, and had died on 16.5.1981, was a very strong suspicious circumstance, which was required to be explained by the propounder of the Will, which he miserably failed. The position would have been different in case the executant had remained in his senses till death. R.S.A. No. 1022 of 1985 11 It was also proved, that the relations between the brothers were very cordial, rather it was the plaintiff / appellants, who were meeting with the medical expenses of Amroo. Non-mentioning or giving reason to disinherit the brothers in the Will, is again a strong suspicious circumstance, which was required to be explained by the propounder of the Will. The learned trial Court also rightly held, that there were material contradictions in the statements of the attesting witnesses. The deposition of the witnesses did not tally with contents of the Will. The learned lower appellate Court while reversing the finding of the learned trial Court was bound to meet with the reasoning given by the learned trial Court. The judgment of the learned lower appellate Court is totally silent on all the suspicious circumstances pointed out by the learned trial Court, to reject the Will. The learned lower appellate Court accepted the Will, on the ground, that the defendant / respondent had produced the scribe and attesting witnesses to prove the Will. In spite of the fact that their own witness i.e. hand writing expert did not support the execution of Will by the executant, as he showed his inability, to compare the thumb impression of the executant on the Will, with the admitted thumb impression on the mortgage deed. The substantial questions of law, are answered in favour of the appellants, and it is held, that it was not open to the learned lower appellate Court to reverse the finding of the learned trial Court without meeting with R.S.A. No. 1022 of 1985 12 the reasoning given by the learned trial Court. The judgment and decree passed by the learned lower appellate Court is outcome of misreading of evidence, thus, perverse. Consequently, this appeal is allowed, the judgment and decree passed by the learned lower appellate Court is set aside, and that of the learned trial Court is restored but with no order as to costs. 3.3.2010 ( VINOD K. SHARMA ) 'sp' JUDGE