R.S.A. No.85 of 1983 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.85 of 1983 (O&M) Date of Decision: February 7, 2011 Malkiat Kaur d/o Arjan Singh wife of Chittan Singh, resident of Village Jgaruak Jakabm, Tehsil Mansa, District Bathinda .....Appellant v. Hardev Singh s/o Arjan singh r/o Dhuri, District Sangrur and others .....Respondents. CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.S.D.Sharma, Sr.Advocate with Ms.Bindu Goel, Advocate for the appellant. Mr.O.P.Goyal, Sr.Advocate with Mr.D.D.Bansal, Advocate for the respondents. ..... RAM CHAND GUPTA, J. 1. Facts giving rise to the present regular second appeal are as under:- 2. Arjan Singh son of Saun Singh (deceased), resident of Dhuri was owner of the land in dispute, duly described in the heading of the plaint. He died on 15.12.1967. Surjit Kaur, respondent no.3 (defendant No.1) is widow of Arjan Singh. Hardev Singh and Sukhdev Singh, respondent nos.1 and 2 (defendant nos.3 and 2 respectively) are the sons of Arjan Singh. Respondent no.4-Hardev Kaur is daughter of Arjan Singh. Appellant- plaintiff-Malkiat Kaur is daughter of Arjan Singh from his first wife. Respondent -defendant nos.1 to 3 got the property, left by the deceased Arjan Singh, mutated in their names on the basis of forged Will in collusion with revenue officials on 8.5.1969 just to grab the rights of present appellant-plaintiff in the property of her father-Arjan Singh. However, it has been contended that Arjan Singh did not execute any Will in favour of defendant nos.1 to 3 and the same is forged and fictitious document. R.S.A. No.85 of 1983 (O&M) -2- 3. On refusal of defendants to admit the claim of the plaintiff, the present suit has been filed for joint possession to the extent of 1/5th share in the property in dispute left by deceased Arjan Singh. 4. Respondent-defendant nos.1 to 3 filed joint written statement admitting the fact that Arjan Singh was the owner of the property in dispute. They have also admitted their relations with their father Arjan Singh (deceased) but they denied the relations of plaintiff with Arjan Singh (deceased). Further plea has been taken that Arjan Singh of his own free will executed a Will dated 24.10.1967 in their favour while he was of sound disposing mind and after his death, they became owners in possession of the property in dispute left by him. It is denied that Will is a forged and fictitious document. 5. Defendant No.4 did not appear to contest the suit and hence she was proceeded ex parte. 6. From the pleadings of the parties, following issues were framed for adjudication by learned trial Court: “1. Whether Malkiat Kaur plaintiff is the daughter of Arjan Singh? 2. Whether Arjan Singh had executed a valid Will in favour of defendant nos.1 to 3? 3. Relief.” 7. Parties adduced evidence in support of their contentions before learned trial Court. 8. Learned trial Court after hearing counsel for the parties and after going through the whole record, decided issue no.1 in favour of appellant-plaintiff by holding that sufficient evidence has been adduced by appellant-plaintiff to prove that she is daugther of Arjan Singh (deceased) and that Jaswant Kaur, first wife of Arjan Singh was her mother. 9. Learned trial Court also decided issue no.2 in favour of appellant-plaintiff by holding that defendants have failed to prove that the Will in question was executed by Arjan Singh. 10. As a sequel to findings on both the issues, the suit of plaintiff was decreed with cost by learned trial Court. 11. Respondent-defendants Hardev Singh and Sukhdev Singh filed two separate appeals, which were decided by learned Additional R.S.A. No.85 of 1983 (O&M) -3- District Judge, Sangrur, vide common judgment, while maintaining findings of learned trial Court on issue no.1, findings of learned trial Court on issue no.2 have been reversed and it was held that Will propounded by Hardev Singh and Sukhdev Singh was proved to have been duly executed by Arjan Singh (deceased), and by virtue of said Will, respondent-defendant nos.1 to 3 are only heirs of Arjan Singh (deceased) and hence, appellant-plaintiff is not entitled to get any share in the estate of Arjan Singh and hence, the suit filed by present appellant was ordered to be dismissed with cost throughout. 12. Aggrieved against the said judgment and decree passed by learned first appellate court, present Regular Second Appeal has been filed by appellant-plaintiff-Malkiat Kaur. 13. The appeal filed by appellant-plaintiff was accepted by a coordinate Bench of this Court vide judgment and decree dated 21.7.2004 and the judgment and decree dated 20.9.1982 passed by first appellate court was set aside and that of learned trial Court dated 9.1.1981 was restored. 14. Aggrieved against the judgment and decree passed by this Court, respondent-defendants Hardev Singh and Sukhdev Singh filed appeal before Hon'ble Apex Court. Hon'ble Apex Court while setting aside the judgment and decree passed by this Court, remanded the case to this Court to render a fresh decision after framing substantial question of law, by passing the following order:- “ In this appeal, the High Court reversed the decision of the trial Court without framing the substantial question of law. In view of judgment of this court in Kulwant Kaur and others v. Gurdial Singh Mann (Dead) by LRs & others (2001) 4 SCC 262, it is incumbent on the part of the High Court to have framed substantial question of law before upsetting the trial Court's order. Solely on this ground, the appeal succeeds. The High Court order is set aside and the matter is remanded to the High Court to render a fresh decision after framing substantial question of law. Appeal is disposed of in the above terms.” 15. I have heard Mr. S.D.Sharma, learned senior counsel appearing for the appellant and Mr.O.P.Goyal, learned senior counsel for the respondents and have gone through the whole record carefully. R.S.A. No.85 of 1983 (O&M) -4- 16. After remand of this case by learned Apex Court, learned counsel for the appellant-plaintiff argued that learned appellate Court has reversed the well reasoned finding given by learned trial Court and has upheld the Will ignoring the well laid general principle of law evaluating evidence in respect of the Will. It has been contended that learned trial Court after taking into consideration the report of Diwan K.S.Puri, handwriting expert and the proof of suspicious circumstances had rightly come to the conclusion that the Will is a fabricated document and, however, learned first appellate court has set aside the finding of learned trial Court on conjunctures and surmises. Hence, he has contended that the following substantial questions of law arise for decision in this second appeal:- “1. Whether the oral and documentary evidence has been misread by the lower appellate Court and misreading of evidence is a substantial question of law? 2. Whether the approach of the lower appellate court is totally erratic and perfunctory. 3. Whether the approach of the lower appellate Court is perverse and perversity of approach is a substantial question of law. 4. Whether the lower appellate Court has failed to consider the relevant evidence produced by the appellant and non- consideration of relevant evidence is a substantial question of law.” 17. On the other hand, it has been contended by learned senior counsel for the respondents, that no substantial question of law arises in this second appeal for consideration of this Court. 18. It may be mentioned here that present regular second appeal has been filed in the year 1983 and the same was admitted on 29.7.1983, without framing substantial questions of law. 19. A Full Bench of this Court in the case of Ghanpat v. Ram Devi AIR 1978 Punjab and Haryana 137 had taken a view that in view of Section 41 of the Punjab Courts Act, the amended provisions of Section 100 of the Code, as amended in 1976, were not applicable to the second appeals filed in this Court and accordingly, no substantial question of law was framed, nor the aforesaid regular second appeals were admitted on any R.S.A. No.85 of 1983 (O&M) -5- such substantial question of law. However, the Hon'ble Apex Court in the case of Kulwant Kaur v. Gurdial Singh Mann (dead) by LRs (2001) 4 JT SC 158 : (AIR 2001 SC 1273) has held that after amendment of Code of Civil Procedure in the year 1976, thereby amending Section 100, Section 41 of the Punjab Courts Act had become redundant and repugnant to the Central Act, i.e., code of Civil Procedure and therefore was to be ignored and therefore, the second appeal shall only lie to this court under Section 100 of the amended code of Civil Procedure on a substantial question of law. 20. It may be mentioned here that though question of law was not framed at the time of admission of present appeal, and however, it has been observed by Full Bench of this Court in Dayal Sarup v. Om Parkash (since deceased) through L.Rs and others (2010-4)160 PLR 1, that this Court can formulate question of law as contemplated under Section 100 of the Code at any point of time before hearing of the appeal, even without amending the grounds of appeal. It has also been held that it is the duty of the court to formulate substantial question of law while hearing the appeal under Section 100(4) and 100(5) of the Code and question of law can be permitted to be raised at any stage of proceedings. 21. Hence, in view of this background and in view of specific order of Hon'ble Apex Court passed in this appeal, though the appeal was admitted without framing any substantial question of law, the matter is being considered by this Court as to whether any substantial question of law is found to have arisen in the present second appeal. 22. There is force in the argument of learned counsel for the appellant-plaintiff that a well reasoned judgment passed by learned trial Court has been set aside by learned first appellate Court without discussing in detail the reasons given by learned trial Court for discarding the Will set up by the respondent-defendants. 23. In Santosh Hazari v. Purushottam Tiwar (Dead) by Lrs JT 2001(2) SC 407, it was observed by Hon'ble Apex Court that in order to maintain second appeal, substantial question of law should arise from the finding of fact and it should be formulated by the High Court. It was further observed that trial Court had decreed the suit and first appellate Court reversed the finding of trial Court and on the facts of that case, it was held that substantial question of law arise particularly when trial Courts findings R.S.A. No.85 of 1983 (O&M) -6- were reversed by first appellate Court. It was observed that the task of an appellate Court affirming the finding of trial Court is an easier one and appellate Court agreeing with the view of trial Court need not restated the effect of the evidence or reiterate the reasons given by the trial Court and that expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice. However, it is averred that while writing a judgment of reversal, the appellate Court must remain conscious of two principles: firstly the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge, who authors the judgment and if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. It is further observed that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the findings of the trial Judge on a question of fact. It was also observed that while reversing the finding of fact, the appellate Court must come into close quarters with the reasoning assigned by learned trial Court and then assign its own reasons for arriving at a different finding. 24. On the facts and circumstances of that case, Hon'ble Apex Court framed the following substantial question of law for decision by the High Court:- “ Whether on the pleadings and the material brought on record by the defendant, the First Appellate Court was right in holding that the case of adverse possession was made out by the defendant and the suit filed by the plaintiff was liable to be dismissed as barred by time under Article 65 of the Limitation Act, 1963, more so when such finding was arrived at in reversal of the findings of the trial Court?” 25. Hence, on the facts and circumstances of this case, I am of the R.S.A. No.85 of 1983 (O&M) -7- view that following substantial questions of law are found to have arisen in the present regular second appeal for consideration by this Court:- “(a) Whether learned first appellate Court was justified in setting aside judgment and decree passed by learned trial Court? (b) Whether respondent-defendants have been able to prove due execution of the Will by deceased Arjan Singh during his life-time in terms of Section 63 of the Succession Act, 1925 and whether respondent-defendants, i.e., propounder of the Will have been able to dispel the suspicious circumstances surrounding execution of the aforesaid Will.” 26. Onus to prove the issue as to whether Arjan Singh (deceased) had executed a valid Will in favour of defendant nos.1 to 3 was upon them. The principles which govern the proving of Will were considered by Hon'ble Apex Court in H.Venkatachala Iyengar v. B.N.Thimmajamma, 1959 Supp (1) SCR 426 and in a later judgment passed by a Bench of four Hon'ble Judges of Hon'ble Apex Court in Rani Purnima Debi and another v. Kumar Khagendra Narayan Deb and another (1962) AIR (SC) 567 : 1962(3) SCR 195. It was observed as under:- “5. Before we consider the facts of this case it is well to set out the principles which govern the proving of a will. This case was considered by this Court in H.Venkatachala Iyengar v. B.N.Thimmajamma, 1959 Supp (1) SCR 426. It was observed in that case that the mode of proving a will did not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act. The onus of proving the will was on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and signature of the testator as required by law was sufficient to discharge the onus. Where, however, there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine. If the caveator alleged undue R.S.A. No.85 of 1983 (O&M) -8- influence, fraud or coercion, the onus would be on him to prove the same. Even where there were no such pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court. Further, what are suspicious circumstances was also considered in this case. The alleged signature of the testator might be very shaky and doubtful and evidence in support of the propounder's case that the signature in question was the signature of the testator might not remove the doubt created by the appearance of the signature. The condition of the testator's mind might appear to be very feeble and debilitated and evidence adduced might not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will might appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will might otherwise indicate that the said dispositions might not be the result of the testator's free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document was accepted as the last will of the testator. Farther, a propounder himself might take a prominent part in the execution of the will which, conferred on him substantial benefits. If this was so it was generally treated as a suspicious circumstance attending the execution of the will and the propounder was required to remove the doubts by clear and satisfactory evidence. But even where there were suspicious circumstances and the propounder succeeded in removing them, the Court would grant probate, though the will might be unnatural and might cut off wholly or in part near relations.” 27. In Savithri and others v. Karthyayani Amma and others 2007 (4) RCR (Civil) 749: 2008 AIR (SC) 300, it was observed by Hon'ble Apex Court that a Will like any other document is to be proved in terms of provisions of Indian Succession Act and the Indian Evidence Act, relevant paragraph of which reads as under:- “14. The legal requirements in terms of the said provisions R.S.A. No.85 of 1983 (O&M) -9- are now well-settled. A Will like any other document is to be proved in terms of the provisions of the Indian Succession Act and the Indian Evidence Act. The onus of proving the Will is on the propounder. The testamentary capacity of the propounder must also be established. Execution of the Will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the Will. It is required to be shown that the Will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the Will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exist suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before it can be accepted as genuine.” 28. Hence, the legal requirements for proving execution of Will can be summarised as under:- “1. A Will like any other document is to be proved in terms of provisions of Indian Succession Act and the Indian Evidence Act; 2. Onus of proving the Will is on the propounder; 3. Testamentary capability of the propounder must also be established; 4. The execution of the Will by the testator has to be proved; 5. At least one attesting witness is required to be examined for the purpose of proving the execution of the Will; 6. It is required to be shown that the Will has been signed by the testator with his free will and that at the relevant time, he was in sound disposing state of mind and understood the nature and effect of disposition; 7. It is also required to be established that he has signed the Will in the presence of two witnesses, who attested his R.S.A. No.85 of 1983 (O&M) -10- signatures in his presence or in the presence of each other; 8. When there exist suspicious circumstances, the onus would be on the propounder to explain the same to the satisfaction of the court before it can be expected as genuine. 9. The Court must satisfy its conscious before its genuineness is accepted by taking a rationale approach. 29. Hence, in the light of aforementioned legal proposition, this Court is to see as to whether respondent-defendants have been able to prove due execution of Will Ex.D1 by deceased Arjan Singh and as to whether they have been able to dispel the suspicions circumstances surrounding the execution of Will by deceased Arjan Singh. 30. In order to prove the Will, respondent-defendants have examined DW1- Siri Krishan petitioner-writer, who deposed that Will Ex.D1 was scribed by his uncle Shadi Ram, who is dead. He proved signatures and writing of of Shadi Ram-deceased. DW2 is Ajmer Singh and DW3 is Chhajju Singh. Both are the attesting witnesses of the Will. The defendants also examined DW5 Mr.K.C.Jaidka, Handwriting and document expert. 31. Both, DW2 and DW3- Ajmer Singh and Chhajju singh deposed that Will was executed by Ajmer Singh in their presence and that it was scribed by uncle of Siri Krishan, petitioner-writer. DW5-K.C.Jaidka also opined that disputed signatures of deceased Arjan Singh on Will Ex.D1 telly with his standard singatures in the summoned file. 32. However, it has been vehemently contended by learned senior counsel for the appellant that both the witnesses, i.e., Ajmer Singh Chhajju Singh belong to village of respondent-defendants and that they are procured witnesses and that Will was forged and fabricated by respondent-defendants in collusion with these witnesses. He has laid much stress on the deposition of Diwan K.S.Puri, document and handwriting expert examined by appellant-plaintiff, who has given his detailed report that disputed signatures of Arjan Singh do not telly with his standard signatures found in the summoned file. 33. The signatures of deceased Arjan Singh on the summoned file are not disputed by either of the parties. Both the parties have examined their own experts in order to prove disputed signatures of Arjan Singh on R.S.A. No.85 of 1983 (O&M) -11- the Will with the admitted signatures on the summoned file. However, both the experts have given different reports. While Shri K.C.Jaidka, document and handwriting expert deposed that disputed signatures of Arjan Singh on the Will tally with his admitted signatures in the summoned file, Diwan K.S.Puri has deposed that the same do not telly. 34. Learned trial Court has given cogent reasons while believing report of Diwan K.S.Puri, document and handwriting expert examined by appellant-plaintiff while discarding opinion given by Mr.K.C.Jaidka by observing as under:- “8. Mr.K.C.Jaidka has opined that the writer of the disputed signatures of Q-1 and Q.2 has not been able to introduce firmness, directness and vigour with which standard signatures S.I to S.8 are written. According to him, the following are the personal features in the disputed signatures and standard signatures, which resemble closely:- `1. The form of “Arra”, “sassa” and “Ghagga” is similar as in S.I and S.2 with natural variations. 2. The shape of letter “Nanna” varies from signature to signature. 3. The upper line is similar in S.8. 4. The letter “Arra” is written with initial stroke higher than the second one and final stroke is written in the same manner. 5. The letter “Arra” is written in the beginning just close the left upper line of `Rara'. 6. The arrangement of `Rara' is between `Ara' & `Jajja' is similar. 7. The letter `Ghagga' hangs at the end in a similar manner. It is a fact of common knowledge that the same person's writing at different time differs according to the circumstances and environments and general health.' During his cross-examination he has admitted that the standard signatures lack nervousness and show no weakness whereas it so appears in case of disputed signatures Q.I and Q.2. He admitted that the line quality in the disputed R.S.A. No.85 of 1983 (O&M) -12- signatures and standard signatures is different. It is medium in standards and poor in the disputed signatures. His only explanation is that all this is due to the difference of age. The disputed signatures are written 8 years after the standard signatures. The opinion of Mr.K.C.Jaidka does not appear to be correct. At the time of the execution of the