78 S 1 b RSA No6 of 1991 1e INTHE PUNJAB AND HARYANA HlGH COURT AT CHANDIGARH RSA No6 of 1991 1 Date of Decision May2010 0 Mohinder Singh 0 Appeilant 3 Versus I C5 Smt3asant Kaur S others I CORAM HONBLE MR JUSTICE VINOD K SHARMA Z Presentl Mr AK ChopraSr Advocate with Mr Sumeet Abrol Advocate C for the appellant I Mt G Gandhi Advocate and a5 Ms HannyGandhi Advocate fot the respondents 4rk9 mv Z VINOD KeSHARMA J CL This is defendants regularsecond appealagainstthe judgment and decree dated 611990 passedbythe IearnedIower appellateCou rt decreeingthe suit for declaration filed by the plaintiff Nol claimingherself alongwith defendants to be owner in possession in equalshare of Iand in disputesituated at villageBhaghanaTehsil Phagwarawith a relief of permanent The plaintiff 1respondentNo low deceasedlfiled a suit for declarationclaimingthat the plaintiff and defendants were owner ln in equalshares to the extent of 114 share each in the Gupta Suruchi 2013.10.23 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 79 A A RSA No6 of 1991 a2 Iand 57K M The mutationIn favour of defendant No l was said to be illegaland qua the rightsof plaintiH and defendant Nos2 8 3 and a reiief of permanent restrainingdefendant Nol l appellantfrom aiienating the r suit Iandin any manner situated at village Bhaghana Tehsil 0 C Phagwara I C5 The brief facts Ieadingto filingof the suit were that one 1 Dewa Singhslo IMoti husband of plaintiffand father of defendants Z waS lll of the Iand in disputealongwith his brother Ganda Singh as Muzara Gair Mourusi The Iandwas declared surplusand ailottedto Iate Shewa Singhand his brotherIateGanda SinghThe I a5 rightswere conferredon them in pursuance to the order passedby this Coutt The sale certificateof the Iand was Jed 7 Z favour of Dewa Singhand Ganda Singhon 11 121981 after their death The mutation was sanctioned in favour of Dewa Singhon death of Ganda Singhas he died unmarriedand issueless The case of the plaintiff was that priorto filingof the suit defendant Nol l appellantgot mutation sanctioned in his favour bearingNoA280 on the basis of forgedand fictitiousWiil allegedto have been executed byDewa Singhin his favour The case of the plaintiff was that Dewa Singhwas not competentto execute this Will as on the date of execution of the Will no rightsin the Iand had been conferred upon him therefore the Will had no affect on the rightsof the plaintiffand defendantsNo 2 8 3 speciallywhen he did not have any subsisting Gupta Suruchi 2013.10.23 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 80 1 A RSA No6 of 1991 titlein the suit Iandat the time of his death The suitwas contested bydefendant Nol only whereas No 283 admittedthe claim of the plaintiff Nol in the written statementadmitted that the 0 Iand in disputewas earlier held byDewa Singhand Ganda Singhas 0 C MuzaraGair Mourusi and that rightswere conferred on I C5 themin pursuanceto the order passedbythis Coutt It was also not I that after the death of Ganda Singh his rightVeSted in Z Dewa SinghHe contesteo the claim of the plaintiHbypleadingthat Dewa Singh had executed a Will in his favour r all his propettyin favour of defendantNo I C45 It was that Dewa Singhhad subsisting titlein the allottedIand at the time of allotment It was also pleadedthat 17 Z plaintiff was notin possession of the Iand therefore the questionof 0 the plaintiffdid not arise Inthe the avermentsmade bydefendant No werecontrovertedand those made in the plaintwere reiterated On the pleadingsof the partiesthe Iearned trial Court framedthe following issues 1 Whether Dewa Singh alongwithhis brother Ganda Singhoccupiedthe suit Iand as Muzara Gair Maurusi and the same was allotted to them and they were conferred rightsby the Honb1eHighCourt20PP Gupta Suruchi 2013.10.23 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 81 e 7 6 RSA No6 of 1991 4m 2 Whether plaintiff and defendants are the owners in accordingto the decisionof Honb1e Coutt of Punjab8 Haryana dated 192 80 and m other decisIons dated 171 and C 26l l l as mentioned in para No l of 0 the 0 I C5 3 Whetherthe no Iocus standi to file this suit2 I 4 WhetherDewa Singhhad executed a Will in favour of defendant 4 No 2OPD 2 0 5 If issue No 4 is provedwhether Dewa SinghlN8S not competent to execute the said Will and the mutations have 08 wrongly been sanctioned on the basis of the said Wi1170PP AW2 6 Whether Mohinder Sighdefendant No IS the Iawful owner in possessionover the suit No l Il 7 Whether the suit IS not rnaintainable20PDNol 8 Whetherthe plaintiffis estoppedto bring the presentsuit by her own acl and conduct20PD No 1 9 Whether the plaintiffis entitled to the relief of prayedfor 2OPP 10 Relief The Iearned trial Court took issues No 45 8 6 together beinginterconnected and on appreciationof evidence decided all these issues in favour oofdefendant Nol l appellantand againstthe piaintiH Gupta Suruchi 2013.10.23 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 82 0 1 7 S RSA No6 of 1991 The reason for decidingthe ISsues in favour of appellant was that the pIaintiffin supportof these issues had examined PWl KarnailSinghslo Sh Khazan Singh PV2 Karnail Singhslo Sh m UjagarSinghbesides InderSinghattorneyof the plaintiHl as PWe3 Byway of documentary evidence the plaintiffplacedon record copy 0 C3 of order passedby thIs Court in CWP No 1071 of 1970 titled as C5 AmoIak Singhand others Vs Financial Commission lPlanningl I Punjab8 others vide which this Court had ordered the grantof Z rightsIll favour of Dewa Singhand Ganda Singh inheritanceof estate of Dewa SinghplaintiHalso placed r on record the copy of the judgment and decree passedin Civil Suit I 08 No 138 of 61981 decided on 17111982 titled as Soha n Singh e and JoginderSinghVs Mohinder Singhvide which the suit filed by 3 Z defendants No 2 8 3 againstdefendant No was decreed and Qm defendantNo l was restrainedfrom defendantsNo 2 8 3 from the Iand in disputeforciblyexceptin due process of Iaw However she did not produceon record the order passedby the Iearnedappellate CouIt in appealfiled byMoninder Singhvide which the case was remanded back byframing an additional issue No and after the remand suit filed by Sohan Singhand Joginderwas dismissed by upholdingthe Will executed in favour of defendant No The judgmentand decree finallypassedby the Iearned trial Cni Irt Wa relierl tlnnn hu Iho 0n11n4 I rleeCIA Al 4 1 er 1 1 RSA No6 of 1991 No on the other hand had examined himself as DWel Gulwant Singhas and Banarsi Dass as DV He also placedon record the Will Ex DW311and the revenue 1 recorcl He also reliedupon the copy of the judgment of this Court The trial Court held that the plaintiffthough 0 0 a nd of disposingmind had chosen not to appear in the I C5 Courtand examined her attorneywho was givenpower of attorney I only two monthspriorto the date on which her statement was to be Z recorded The Iearned trial CouIt on of evidence and 0 speciallYIn view of the previousjudgment between defendants No 2 I 08 S 3 and the appellantheld the Will to be provedand e decidedthese issues in favour of defendant Nol l appellant V3 Z As there was no disputeonissue No the Iearned trial 0a Court recorded a findingthat Dewa Singhalongwith his brother GandaSinghoccupiedthe suit Iandas Muzara Gair Maurusi which WaS ailotted to them after it was declared surplusin the hands of Jit Singhand further that rightswere conferred on Dewa Singhand Ganda Singhin pursuance to the order passedby the Honble HighCoult In view of the findingholdingthat there was a valid Will in favour of defendant No issue No was decided againstthe plaintiffIt was further held that as there was no prayer made for defendant Nol from her no case of was made out Gupta Suruchi 2013.10.23 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 83 9 1 d RSA No6 of 1991 4 Issues No 37 88 were decided againstthe defendants asnot pressedand in view of findingrecorded on issues No 4 5 8 6 the suit was dismissed 1 The 1 preferred an appealagainstthe and decree passedby the Iearnedtrial Court Keepingin 0 0 View thefact that the disputewas onlywith regardto the Will The Z Iearned Iower Coutt considered onlythis questionas the CD I result ofthe suit was to dependon the validityof the Will 1 The Iearned Iower Coun held the Will to be bysuspicious circumstances for the reasons hereinaner lr mentioned 08 The IearnedIower Coutt held that the judgment 4 Ex3 in a suit between the defendants was not bindingon the 7 Z as she was not partyto the suit The IearnedIowerappellate tl Court held that the Will was not provedas defendant Nol failed to exarnine CharanDass e the scribe of the Will and Kartar Singhthe other witness of the Wiil In view of of these two witnesses the Court held that adverse inference was required to be drawn against defendant Nol l appellantThe Iearned Iower appellateCoutt consideredthe evidence of DWe2 IBanarsi Dass another attesting witness who was examined to prove the V The Court did not accepthis evidence for the reason that he was resident of village Panchhat whereas Dewa Singhwas resident of villageBhaghana and that he had not got the Will attested by the Lambardar or Gupta Suruchi 2013.10.23 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 84 1 7 d RSA No6 of 1991 Member of his villageThis was a suspicious The IearnedIower appellate Coutt further held that as BanarsiDass was not able to tell the Pati where the house of Dewa 1 Singhwas situatedand furthermore he did not know the names of r the sisters and brothersof Dewa SinghHe had aiso not aPPeared 0 C before the sM at the timeof attestationof mutation which meant I 9 thathe did not know Dewa SinghTherefore it could not be beiieved thathe could be called to attest the Wiil The Iearned Iowerappellate er Z Court further held that the thumb of Dewa Singhat the time of of the Will were superimposedThe findingof C 4 IearnedIower appellateCourt was that this was done to avoid I a5 of the signatures 4r The Iearned Iower appeliateCourt also held that 2 Z Mohinder Singhin the written statement had not mentioned about the date of Will which itself created doubt about its The other suspiciouscircumstance considered was that no reason was givenfor the widow and other sons The Iearned IowerappellateCourt held that as these suspiciouscircumstances were not explainedby the propounderof the Will therefore finding on issue No could not be sustained the suit filed bythe plaintiff was decreed Mr A K ChopraIearned senior counsel appeang on behalf of the appeliantchallenged the judgment and decree passed by the iearned Iower appellateCourt by raisingthe foilowing substantialquestions of Iaw Gupta Suruchi 2013.10.23 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 85 r 9 L 4 RSA No6 of 1991 4 1 Whether the judgmentand decree passedby the Iearned Iower appellate Courtis outcome of misreadingof and oral evidence on 1 record thus perverse2 C 0 2 Whether the Ieamed Iower appellate Ca3 Courtcould reverse the findings without I meetingwith the reasoning ivenby C5 theIearnedtrial Coutt2 I 4 Z 3 Whether the judgmentand decree 2 passedby the Iearned Iower appellate 0 Court is on the face of it penierse in view of the and decree Ex 08 3 passed inter se between the defendants2 4 mm Z In supportof the substantialquestionsof Iaw referredto tl above the Iearned senior counsei for the appellantreferred to the judgment and decree Ex3 passedin a suit for filed by defendants No 83 againstthe appellantwherein issue No1 with regardto the validityof the Will was framed and decided in favour of appellant He referred to the findingof the Iearned Sub JudgeIst Class Phagwara on issue NoA in a Civil Suit No138 of61981 titled as Sohan Singhand another Vs Mohinder Singhwhich reads asunder 10 Charan Dass petitionwriter the scnbe of the will dated 71 971 ExOl DWl Kartar Gupta Suruchi 2013.10.23 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 86 01 4 9 W1 RSA No6 of 1991 0 Singhone of the l attestingwitnesses of the said will DW2 and Mohinder Singh defendantDW3 and on the other hand there beingno evidencewhatsoever on the record adduced by the plaintiffsto rebut their 1 evidencewith regardto the said will coupled withthe fact that not even a singlesuspicIous 0 with regardto the said will has C0 been out by the Ieamed counsel for the I duringthe course of his arguments at C5 the bar it is found that Deva Singljeceasedl I executed a valid will dated 71971 in favour of Z Mohinder Singhdefendant and on the basis of thesaid valid will in his favour he is exclusive C e owner of the suitproperty in the eye of Iaw This I ISSue Issue NoAl IS hereby found a5 and is herebydetermined and decidedin favour of the defendant and against the ll 17 Z The contention of the Iearnedsenior counsel byreferring 0 to thejudgment was that the findingrecorded by the Iearned Iower Court holdingthat the Will was not provedis outcome of of evidence It was also the contention of the Iearned senior counsel for the appellant that the Iearned trial Court had acceptedthe version of the defendant 1 appeilantin view of the judgmentand decree earlier passedinter se betweenthe defendants in which the relief on behalf of the plaintiff was also claimed but no reasons had beengivenbythe Iearnedappellate Coun as to how the findingwas Gupta Suruchi 2013.10.23 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 87 1 4 RSA No6 of 1991 Il bad in Iaw Finailyit was contended by the Iearned senior counsel for the that the judgmentand decree passedby the m IearnedIowerappellate Court on the face of it is perverse in view of r the and decree Ex Dm3as defendants No2 83 could not 0 0 the matteron their own to challenge the Will therefore even I 0 theplaintiff could notdo so on their behalf I The Iearned senior counsel for the appellantplaced Z reliance on thejudgment of the Honble SupremeCourt in the case of Aanaimuthu Thevar Ieceased by l2sI V Alagammaland 0 others AlR 2005 SupremeCourt 4004 to claim that the suit filed by 08 the plaintiff was hit by constructiveres judicataThis judgmentdoes not supportthe case of defendant NoIl appeilant as in the said case wmo Z the plaintiffin the second suit was drawinghis titie thougha person Il who had his rightIt was inview of the said fact that the second suit was heid to be barred by constructive res judicata whereas in the presentcase the Iearned Iower appellateCoun rightlyheld that the previoussuit was not bindingon the plaintiHas she was not partyto the previoussuit The Iearned senior counsel for the appellantalso contended that the Iearned Courts below misread the settled Iaw that even if the principleof res judicatawas not applicable still the plaintiff was estoppedbyher conduct to maintainthe presentsuit as in the previoussuit reiief on her behalf was also claimed as in the presentcase she was claiming relief on behalf of defendants No 28 Gupta Suruchi 2013.10.23 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 88 4 RSA No6 of 1991 12 The decree passedagainstdefendants No 2 8 3 was not challenged Ill appealIn support of this contention reliance was placed on the judgment of the Honble Supreme Cou in the case of m Bhanu Kumar Jain V Archana Kumar and another AiR 2005 L Supreme Court 626 wherein the Honble SupremeCoutt has been 0 0 pleasedto Iaydown as under 0 There is a distinction between issue estoppel I and res judicataRes judicatadebars a Court from exercising its to determine the Z Iis if it has attained finalitybetween the parties 2 whereas the doctrine of issue estoppelIS Cr invokedagainstthe partyf such an issue is decided againsthim he would be estopped 08 from raisingthe same in the Iatterproceeding The doctrine of res judicatacreates a different 7 kind of estoppelviz EstoppelbyAccord Il Z C Finally reliance was placedon the judgmentof the Honbie Patna HighCourt in the case of Thakur Ram Sahai Sinha Ve Mostt Bimla Devi and another AlR 1980 Patna 204 wherein the Honble Patna HighCourt has Iaiddown that to attractthe provisions of Section 11 of the Code of Civil Procedure the issue in conflict need not necessarilyanse from the pleadingsit could arise even at the hearingof the suit In support of the third substantial questionof Iaw the contention raised was that In view of the judgmentExJ3 defendants No2 83 were barred to challengethe Will or claim any interestin the piaintiH couid not also fiie a suit on Gupta Suruchi 2013.10.23 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 89 1 J S RSA No6 of 1991 13 their behalf On the groundof the contentionsreferred to above it was prayedthat the substantialquestionsof Iaw be answered in favour m of the appellantand againsthe r Mr GS Gandhi Iearnedcounsel appearing on behalf of 0 0 the plaintiff l however supportedthe judgmentand I 0 decreepassedby the Ieamed IowerappellateCout1 by I that the plea of the appellantthat the second suit was hit by Z constructiveres judicatacannot be acceptedas in order to succeed 2 in a pleaof res judicatait has to be provedthat the parties 0 4 in the previoussuit weresame the subjectmatter of the suit was oll identical or same the matter in the previoussuit should be decided finallybetweenthe partiesand the judgmentand decree should be of a competentCouIt Cle The contention of the Iearned counsel for the plaintiff1 respondentswas that thoughthe subjectmatter of the suit is identical and the matter has been Onallydecided bythe competent Court but the partieswere not same as the plaintiffI respondent was not partyto the previous therefore the plea of res judicatacannot be accepted In suppottof this contention the iearned counsel for the plaintiff1 respondentplacedreliance on the judgmentof the Honble SupremeCourt in the case of SyedMohc Salie Labbi Deadlby RsInd others Vs Mohrl HanifDeadl by LR And others AlR 1976 SupremeCourt 1569 There can be no disputewith this Gupta Suruchi 2013.10.23 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 40 9 4 RSA No6 of 1991 14m of Iaw The Iearnedcounsel for the plaintiHl respondentalso placed reliance on the judgment of the Honble Supreme Court in the 1 case of Gurbux Singh Va Bhooralal AlR 1964 SupremeCourt C 1810to contend that in order to succeed in a pleaof res judicata the 0 C party has to file evidence as weli as pleadingin previous suit and no C5 findingcan be recorded on the basis of reasoningiven in the The reliance on this judgmentby the Iearned counsel for Z the plaintiff 1 on the face of it is misconceived as the Honble Supreme CouIt in the case was the provisions of r Order2 Rule 20f the Code of Civil Procedure and not the principle I C45 of res judicata The Iearned counsel for the plaintiffl mmo Z thereafter contended that the Will was rightlydisbelieved and the Om reasons givenby the Iearned Iower appellateCouIt to discard the Will constitute suspiciouscircumstance which were requiredto be dispelledby the propounderof the Will In supportof the findingof the IearnedIowerappellate Court the Iearnedcounsel for the plaintiH 1 respondentplaced reliance on the judgmentof the Honble SupremeCourt in the case of BharpurSinghS Ors Vs Shamsher Singh20091 RCR Civio826 wherein it has been Iaid down that the of the Will by itself would not mean that the statutory requirement of provingthe Will is not required to be compliedwith The Honble SupremeCourt in this judgmenthas Iaid down Gupta Suruchi 2013.10.23 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 41 1 J RSA No6 of 1991 15 thatdepriving the natural heirs in preferenceto distant relativesis a circumstance The Honble SupremeCourt in this very further Iaid down that the Court before acceptingthe Will shouldtake necessary precaution with regardto the due execution of the Will 0 C Reliance thereafter was placedon the judgmentof the I C5 Honble SupremeCourt in the case of ApolineDSouza VJohn I DSouza 2007 RCR Civiil 260 wherein againit was held that mere of the Will would not dispensewith the requirement of proofof due execution and attestationof the Will L The Iearnedcounsel also placedreliance on the judgment I a5 of the Honble Supreme Court in the case of Smt Jaswant Kaur v Smt Amrit Kaur and others AIR 1977 SupremeCourt 74 to 7 Z contend that it was for the to explainthe suspicious ll circumstances the due executionof the Will Reliance was thereafter placedon the judgmentof the Honble SupremeCourt in the case of K Laxmanan v Thekkayil Padmini and others RCR Civio389 wherein it has been held that when the Will is surrounded bysuspicious circumstances then it cannot be held to be proved Reliance was also piacedon the judgment of the Honble SupremeCourt in the case of Adivekka S Ors v Hanamavva Kom Venkatesh D By LRs 200721RCR Civio 811 to contend that of property to strangerin preference to wife and children Gupta Suruchi 2013.10.23 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 42 1 1 d RSA No6 of 1991 16 is a suspicIous circumstance The Iearned counsel for the plaintiffl contended that evidence of Banarsi Dass who was examined to 1 prove the due execution of the Will could not be acceptedand was rightiyrejectedbeingnot a resident of different village and was 0 0 furthernot able to give of the famiiyof Dewa Singh He 5 could therefore not be believed to prove the due execution as held bythe IearnedIower appellate Coutt 4 Z Inview of the submissions made above the contentionof 5 the Iearned counsel for the plaintiffl was that the C 1 substantialquestionsof Iaw be answered againstthe defendanf 1 I 08 No and in favour of the plaintiff The Iearnedcounsel for the appellantcontended that the am Z IearnedIowerappellateCourt rightlypassedthe decree in favour of 0m the piaintiffand defendants No2 8 3 as the Court could acceptthe Will in toto or rejectedit in toto and could not partiallyacceptit On consideration of the matter I find force in the contentions raised by the Iearned senior counsel for the appellant The findingof IearnedIowerappellate Court cannot be acceptedfor the reason that the Iearned Iowerappellate Court has not givenany reason for with the findingrecorded on Ex which even thoughwould not operateas res judicatabut was certainlya pieceof evidence in supportof the Wil This evidence was most importantas the plaintiffin the suit was not claimingonlyher right butalso rightof defendantsNo2 S 3 who were partyto the previous Gupta Suruchi 2013.10.23 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 43 4 19 4 RSA No6 of 1991 7 wherein the Will in dispute was upheld The reason givenbythe IearnedIowerappellate Coutt in Iaw if taken in isolation cannot be doubted but in order to find out 1 whether the Will was dulyexecuted or not the totalityof the C circumstanceswere to be seen and not in isolatior 0 C The IearnedIower appellate Court failed to take note of I C5 the fact that the Wili in questionWaS dulyprovedand acceptedby I theCourt