Regular Second Appeal No.5920 of 2003 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.5920 of 2003 Date of decision: 11.08.2009 Umed Singh Dahiya son of Shri Bal Kishan, r/o H. No. 176-R, Model Town, Sonepat, Haryana. ..... Appellant. Versus Balwan Singh s/o Bal Kishan, r/o H. No. 176-R, Model town, Sonepat, Haryana ..... Respondent. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Arun Jain, Senior Advocate with Mr. Anupam Sharma, Advocate for the appellant. Mr. M.L. Sarin, Senior Advocate with Mr. Kabir Sarin, Advocate for the respondent. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 17.09.2003, rendered by the Court of Regular Second Appeal No.5920 of 2003 -2- Additional District Judge, Sonepat, vide which it accepted the appeal against the judgment and decree dated 17.02.2003, rendered by the Court of Civil Judge (Junior Division), Sonepat. 2. Shorn off unnecessary details, the facts relevant for the decision of the case, are that the house, in dispute, as fully detailed, in the plaint, was purchased by Bal Kishan, father of the parties, vide registered sale deed dated 16.10.1958. He executed a Will dated 06.12.1988 bequeathing the house, in dispute, in favour of the plaintiff(now appellant). It was stated that after the death of Bal Kishan, the plaintiff (now appellant) became the owner of the house, in dispute. It was further stated that the defendant (now respondent) was living in a portion of the house. It was further stated that the defendant was many a time, asked to hand over the possession of a portion of the house, Regular Second Appeal No.5920 of 2003 -3- which he was occupying, but to no avail. On his final refusal, left with no alternative, a suit for possession, was filed. 3. The defendant, put in appearance, and contested the suit, by way of filing the written statement, wherein, it was pleaded that the suit was not maintainable; that the plaintiff had no locus standi to file the suit; that the plaintiff was estopped from filing the suit by his own act and conduct; and that the plaintiff had not come to the Court with clean hands. It was stated that Bal Kishan was mentally retarded three years prior to his death, and, as such, was not in a position to execute any document. It was denied that the Will dated 06.12.1988, was executed by Bal Kishan, in favour of the plaintiff (now appellant). It was further stated that if the execution of the Will was proved, the same was the result of fraud, undue pressure Regular Second Appeal No.5920 of 2003 -4- and coercion. It was further stated that the defendant was occupying ½ portion of the property, in dispute, in his own right as the son of Bal Kishan. It was further stated that Bal Kishan, separated him, and the plaintiff, in the year 1970. It was further stated that the defendant joined as a Teacher, in the year 1967, and was residing separately. It was further stated that a dispute had arisen between the parties, in respect of the water connection, in the house, in dispute, and a compromise was effected before the Police on 17.7.1990. The plaintiff had signed the compromise, accepting his (defendant) ownership of ½ share, in the house, in dispute. He further stated that had any will been in existence, at the time of effecting compromise, the same would have been produced, but no such will was produced, nor set up. It was further stated that the will was a fabricated document. The remaining Regular Second Appeal No.5920 of 2003 -5- averments, contained in the plaint, were denied being wrong. 4. From the pleadings of the parties, the following issues, were framed, by the trial Court :- “1- Whether Bal Kishan executed a Will in favour of the plaintiff bequeathing him the suit property on 6.12.1988 ?OPP 2- If issue no.1 is proved in affirmative, whether the plaintiff is entitled to recover the possession of the suit property ? OPP 3- Whether the plaintiff has no locus standi to file the present suit? OPD 4- Whether the suit is not maintainable in the present form?OPD 5- Whether the plaintiff is estopped by his own act and conduct to file the present suit ?OPD Regular Second Appeal No.5920 of 2003 -6- 6- Whether the plaintiff has not come to the Court with clean hands ?OPD 7- Relief.” 5. The parties led evidence, in support of their case. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the trial Court decreed the suit. 6. Feeling aggrieved, an appeal was preferred by the appellant/defendant, which was accepted by the Court of Additional District Judge, Sonepat, vide its judgment and decree dated 17.09.2003. 7. Feeling dis-satisfied, the instant Regular Second Appeal, has been filed by the appellant/plaintiff. 8. I have heard the Counsel for the parties, and have gone through and perused the evidence and record of the case, carefully. 9. The following substantial question of law, arises, in this appeal, for the determination of this Court:- Regular Second Appeal No.5920 of 2003 -7- “1. Whether the first Appellate Court mis-read and mis-appreciated the evidence and recorded perverse finding that a legal and valid will dated 6.12.1988 was not executed by Bal Kishan, in favour of the plaintiff (now appellant) bequeathing the house, in dispute, in his favour? 10. The Counsel for the appellant, submitted that the trial Court was right in coming to the conclusion, that a legal and valid will was executed by Bal Kishan, in favour of the plaintiff (now appellant). He further submitted that the first Appellate Court mis-read and mis- appreciated the evidence, produced on record and, thus, recorded perverse finding that no legal and valid Will(Ex.P-1) was executed by Bal Kishan, in favour of the plaintiff (now appellant). He further submitted that even on the basis of this Will, a mutation was sanctioned, in the presence of the defendant, but he did not object to the legality and validity thereof at that time. He further submitted that had Bal Kishan not executed the Will in favour Regular Second Appeal No.5920 of 2003 -8- of the plaintiff, (now appellant), the defendant would have certainly raised an objection, at the time of sanction of mutation. He further submitted that the suspicious circumstances, noted down, by the first Appellate Court, in its judgment surrounding the will, were flimsy. He further submitted that even Bal Kishan was in sound disposing mind, at the time of execution of the will. He further submitted that the judgment and decree of the first Appellate Court, were based on mis-reading and mis-appreciation of evidence and, as such, were illegal, and liable to be set aside. 11. On the other hand, the Counsel for the respondent, submitted that the will speaks from the death of a person, and it was for the propounder, to prove the execution, legality and validity thereof, as also to dispel all the suspicious circumstances, surrounding the same. The first Appellate Court took into Regular Second Appeal No.5920 of 2003 -9- consideration the evidence, on record, in its proper perspective, and rightly came to the conclusion that the testator was not in sound disposing mind, at the time of alleged execution of the Will. He further submitted that the first Appellate Court was also right in holding that the suspicious circumstances, surrounding the will, remained unexplained and, as such, the same (will), was not a legal and valid document. He further submitted that, at the time of mutation, the presence of the defendant (respondent) was not marked, nor any document was produced, on record, to prove that he was actually given a notice to appear before the competent authority. He further submitted that, even otherwise, mutation does not confer any right. He further submitted that the judgment and decree of the first Appellate Court, being based on the correct appreciation of evidence, and law, on the point, were liable to be upheld. Regular Second Appeal No.5920 of 2003 -10- 12. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion,the appeal deserves to be dismissed,for the reasons to be recorded hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at, by the first Appellate Court, even if, the same are grossly erroneous as the legislative intention, was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Regular Second Appeal No.5920 of 2003 -11- Court in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. Ramesh Kumar, (PW-2), typed the Will (Ex.P1). Naresh Kumar, (PW-3) is one of the attesting witnesses of the Will. According to him, the will dated 06.12.1988, (Ex.P-1) was executed by Bal Kishan, in favour of the plaintiff(now appellant), which was read over and explained to him, and after admitting the same to be correct, he thumb marked the same, in his presence, and in the presence of Ram Lakhan Bansal. He further stated that he and Ram Lakhan Bansal signed the will in the presence of Bal Kishan. However, mere proof of execution of the Will, could not be said to be sufficient. The propounder was required to prove the legality and validity of the same, as also dispel the suspicious circumstance, surrounding the same. In Smt.Jaswant Kaur v. Smt. Amrit Kaur & Ors., AIR 1977(SC) 74, Regular Second Appeal No.5920 of 2003 -12- the Apex Court relied upon its decision, in case reported as H .Venkatachala Iyengar vs. B.N. Thimmajamma & Ors, AIR 1959 (SC) 443 , Ram Chandra Ram Bux v. Champabai & Ors. AIR 1965 SC 354 and Pushpavati & Ors. v. Chandraja Kadamba & Ors AIR 1972 SC 2492 and summed up the conclusion, in the form of propositions, which read as under:- “(1) stated generally a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind, in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. (2) Since section 63 of the Succession Act, requires a will to be attested, it cannot be used as evidence until as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. (3) Unlike other documents, the will speaks from the death of the testator, and, therefore, the maker of the circumstances, in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question, whether the document pronounced is proved to be the last will and testament of the testator. Normally, the onus which lies, on the propounder, can be taken Regular Second Appeal No.5920 of 2003 -13- to be discharged on the proof of the essential facts, which go into the making of the will. (4) Cases in which the execution of the will, is surrounded by suspicious circumstances, stand on a different footing. Shaky signatures, a feeble mind, and unfair and unjust disposition of property, the propounder himself, taking a leading part in the making of the will, under which he receives a substantial benefit and other circumstances, raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertions of the propounder that the will bears the signatures of the testator on that the testator was in sound and disposing state of mind and memory, at the time when the will was made, or that those like the wife and children of the testator, who could normally receive their due share, in his estate, were disinherited, because the testator might have had his own reason of excluding them. The presence of suspicious circumstances, make the initial onus heavier, therefore, in cases where the circumstances attendant upon the execution of the will, excite the suspicion of the Court. The propounder must remove all legitimate suspicious circumstances, before the document can be accepted, as the last will of the testator. (5) It is in connection with will, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the Judicial conscience, has been evolved. That test emphasises that in determining the question, as to whether, an instrument produced, before the Court, is the last will of the testator, the Court is called upon to decide as Regular Second Appeal No.5920 of 2003 -14- solemn question, and by reason of suspicious circumstances, the Court has to be satisfied fully, that the will has been validly executed by the testator. (6) If a caveator alleges fraud, undue influence, coercion etc., in-regard to the execution of the will, such pleas have to be proved, by him, but even, in the absence of such pleas, the very circumstances, surrounding the execution of the will, may raise a doubt, as to whether the testator, was acting of his own free will, and when it is a part of the initial onus of the propounder to remove all reasonable doubts, in the matter.” Not only this in Smt. Indu Bala Bose & Ors. v. Manindra Chandra Bose & Anr. (AIR 1982,SC 133), which has summarized the principles laid down, in the earlier and many more other decisions, including those of the Privy Council, it was held as follows:- “This Court has held that the mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by S. 62 of the Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the Regular Second Appeal No.5920 of 2003 -15- onus, where, however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Even where circumstances give rise to doubt, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind the disposition made in the will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator's mind was not free. In such a case the Court would naturally except that all legitimate, suspicions should be completely removed, before the document is accepted as the last will of the testator. If the propounder himself takes a prominent part in the execution of the will, which confers a substantial benefit on his, that is also a circumstance, to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances, the Court would grant probate, even if the will might be unnatural and mist deprive of wholly or in part near relations” 13. Keeping in view the principle of law, laid down by the Apex Court, in the aforesaid cases, the execution, validity, and legality or otherwise of the Will (Ex.P-1) was required to be Regular Second Appeal No.5920 of 2003 -16- determined. Bal Kishan, testator, was 78 years old, at the time of the alleged execution of the will. Whether he was in sound disposing mind, at the time of execution of the will, was for the propounder to prove by producing the cogent and convincing evidence on record. Dr. S.C. Bhargav, (DW-4), Associate Professor of Psychiatry, Post Graduate Institute of Medical Sciences, Rohtak, stated that he had been posted as a Specialist in mental diseases in the aforesaid Institute since 1986. He further stated that OPD Card, Ex.DW4/A bore his signatures, and the patient was shown to him on 12.12.1988. He further stated that the record relating to the year 1988, was not available, as the same was destroyed after 10 years. He further stated that they do not intentionally mention the disease, on the outdoor card, in order to maintain confidentiality. He further stated that they used to prescribe Regular Second Appeal No.5920 of 2003 -17- the medicines and the patient must have been suffering from behaviourial problems, due to age and there would be a decline in the mental capabilities and normally such patients do not get cured. He further stated about the medicines, which were prescribed. From the statement of Dr. S.C. Bhargav, (DW-4), it was, proved that the testator was not mentally capable. Ramesh Kumar, (DW-1), Balwan, defendant, (DW-2) and Jagat Singh, (DW-5) also deposed that 3-4 years, prior to his death, in the year 1989, Bal Kishan had gone very weak, and his mental capabilities had also declined. They further stated that he (Bal Kishan) had also been taken by them, to Rohtak Medical Hospital, for treatment. Ex.D-1 is the OPD Card, which was produced by Ramesh Chand, (DW-1) regarding the treatment of Bal Kishan, in the Psychiatry Ward. Once suspicion arose, with regard to the mental capability of the testator, from Regular Second Appeal No.5920 of 2003 -18- the evidence of the aforesaid witnesses, it was for the propounder to dispel the same. No evidence, whatsoever, was produced by the propounder, to prove that Bal Kishan, testator was in sound disposing mind, at the time of execution of the will. Ramesh Kumar, (PW-2), the typist, who allegedly typed the Will (Ex.P-1), did not state even a single word, in his statement, that Bal Kishan was in sound disposing mind, at the time of the alleged execution of the will. Naresh Kumar, (PW-3), one of the attesting witnesses of the will, (Ex.P-1), did not state even a single word, in examination- in-chief that Bal Kishan, was in sound disposing mind, at the time of the alleged execution of the will. The propounder was, thus, unable to dispel, through satisfactory evidence, the suspicious circumstance, aforesaid, surrounding the Will. 14. The Will was allegedly typed Regular Second Appeal No.5920 of 2003 -19- at Sonepat, which is a district headquarter. There are also the judicial Courts at Sonepat. A number of regular deed writers, must be available, in the Tehsil and also in the Courts. Despite availability of the services of regular deed writers, the will was not got scribed from any of them. Had Bal Kishan executed a genuine will, he would have certainly got the same scribed or typed from a regular deed writer. In that event, he would have entered the same, in his regular deed writer register, and also obtained the signatures or thumb impressions of the testator and the witnesses therein. In those circumstances, corroboration would have been furnished through the entry, aforesaid, in the deed writer register, to the execution of the validity and legality of the Will. No reason, whatsoever, was advanced by any of the witnesses, as to what prevented, Bal Kishan, in getting typed/scribed the Will Regular Second Appeal No.5920 of 2003 -20- from a regular deed writer. Had the Will been executed in the village, the matter would have been different. In those circumstances, it would have been said that since no regular deed writer was available in the village, the will was not got scribed from him. This was one of the suspicious circumstances, which weighed with the first Appellate Court, to come to the conclusion, that the legality and validity of the will dated 06.12.1988, (Ex.P-1), did not stand proved. In my opinion, the first Appellate Court was right in coming to such a conclusion. 15. Not only this, the will was not got registered, by Bal Kishan, despite the availability of the Sub- Registrar/Registrar at Sonepat, where the same was allegedly executed. Bal Kishan, was the Sarpanch of the Village. Had the will been executed, in the village, it would have been said that since there was no facility of registration therein, non- Regular Second Appeal No.5920 of 2003 -21- registration thereof, did not at all affect the legality and validity thereof. The will was allegedly executed at Sonepat, where the facility of registration was available. Even earlier a registered power of attorney was executed on 08.09.1986, by Bal Kishan, in favour of Balwan Singh, his son, who is the respondent. It means that he knew the significance of registration of a document. If despite the availability of facility of registration, and knowing the significance of registration of a document, Bal Kishan, did not get the will registered, it could certainly be said to be a suspicious circumstance, surrounding the execution validity and legality of the same. It is, no doubt, true that the Will is not a compulsorily registrable document yet, in the peculiar facts and circumstances of the case, non- registration thereof, was certainly a circumstance, which cast a doubt, on the Regular Second Appeal No.5920 of 2003 -22- legality and validity thereof. The first Appellate Court was also right in holding so. 16. Even Ram Lakhan Bansal, an attesting witness, who allegedly introduced the testator, to the typist, namely Ramesh Kumar, (PW-2) was not examined as a witness. No doubt, for proving the execution of will, examination of one attesting witness is sufficient. However, in view of the peculiar facts and circumstances, prevailing, in this case, when the typist did not know the testator personally, and he was introduced to him, by Ram Lakhan Bansal, the evidence of the latter, was of great importance. Had he been examined, he would have certainly deposed as to who was the person, who was introduced by him, to the typist, and, at whose instance, the Will was executed/typed by the typist, as he (typist) did not know him(testator). This was also one of the suspicious Regular Second Appeal No.5920 of 2003 -23- circumstances, surrounding the will, which was not dispelled by the propounder and was rightly taken to be casting a doubt, on the validity and legality of the same, by the first Appellate Court. 17. The will did not bear the signatures of the typist. Ramesh Kumar, (PW-2), was also not a regular typist/scribe. There is nothing, on the record, that he recorded the contents of the Will (Ex.P-1) in any register. Had the will been typed by him, he would have certainly signed the same and affixed his own stamp thereon. The existence of his signatures, and stamp on the said document, would have certainly furnished corroboration, to his statement that actually the will was executed by Bal Kishan. This was also taken to be as one of the suspicious circumstances, and rightly so, by the first Appellate Court casting a doubt on the validity and legality of the Will. Regular Second Appeal No.5920 of 2003 -24- 18. No provision, was made, by Bal Kishan for his wife and the daughter in the Will. Both of them were legal heirs of equal degree. Why they were not given any share in the property, by the testator, is not known. There is not even a fleeting reference, with