Regular Second Appeal No. 2155 of 2006 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.2155 of 2006 Date of decision: 11.08.2009 Sheela Rani widow of Shri Babu Ram son of Sh. Bhagat Ram, r/o Mohalla Sangalpura Road, Gurdaspur. ..... Appellant. Versus Tarlok Chand s/o Late Sh. Babu Ram s/o Bhagat Ram r/o Mohalla Sangalpura Road, Gurdaspur. ..... Respondent. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr.Parveen Kumar, Advocate for the appellant. Mr.R.K. Arya, Advocate for the respondent. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 16.12.2003, rendered by the Court of Additional Civil Judge (Senior Division), Gurdaspur, vide which it dismissed the suit Regular Second Appeal No. 2155 of 2006 2 and the judgment and decree dated 09.08.2005, rendered by the Court of District Judge, Gurdaspur, vide which the appeal against the judgment and decree of the trial Court, was dismissed, and the cross objections filed by Tarlok Chand, were accepted. 2. The brief facts of the case, are that earlier Babu Ram, husband of the plaintiff (now appellant), was the owner in possession of the property, in dispute, as fully detailed in the plaint. Babu Ram executed a Will dated 20.03.1998, in favour of the plaintiff,(now appellant). The defendant, being the son of Babu Ram, the original owner of the property, in dispute was accommodated in a portion, marked by words ABCDEF of the house, in dispute. After the death of Babu Ram, the plaintiff became the owner of the property, in dispute. The defendant abused and gave beatings to the plaintiff (now appellant) and also threatened to kill her. Keeping in view the Regular Second Appeal No. 2155 of 2006 3 behaviour of the defendant(now respondent), the plaintiff revoked the licence and he was asked to vacate the demised premises, but to no avail. On his final refusal, left with no alternative, a suit for mandatory injunction was filed. 3. The defendant (now respondent) put in appearance, and contested the suit, by way of filing written statement, wherein, it was pleaded that the suit was not maintainable; that the plaintiff had neither cause of action nor locus standi to file the suit; and that the plaintiff was estopped from filing the suit, by her own act and conduct. It was denied that Babu Ram executed a legal and valid Will dated 20.03.1998, in favour of the plaintiff. It was stated that, in fact, the plot marked by words ABCDEF alongwith passage was owned and possessed by Bhagat Ram, grandfather of the defendant (now respondent). It was further stated that this plot was given to the defendant about 30 years ago, by Bhagat Regular Second Appeal No. 2155 of 2006 4 Ram. It was further stated that the defendant constructed his house on the plot marked by words ABCDG after spending huge amount from his own pocket. It was further stated that the passage marked AGFH from the main road, is used for reaching the house. It was further stated that Babu Ram contracted two marriages. From the first marriage, the defendant, Nirmla Devi, Krishna Devi and Darshna Devi are the children. From the second marriage, contracted with the plaintiff, Ashok Kumar, Bhagwan Dass and Suman were born. It was further stated that the plaintiff, being the step mother of the defendant, had instigated Babu Ram to file an application under Section 125 of the Code of Criminal Procedure for maintenance. It was further stated that the defendant continued paying maintenance to his father. The remaining averments, contained in the plaint, were denied, being wrong. Regular Second Appeal No. 2155 of 2006 5 4. From the pleadings of the parties, the following issues were framed by the trial Court :- “1- Whether the plaintiff has become owner of the house, in dispute, on the basis of registered Will dated 20.03.1998 executed by Babu Ram in favour of the plaintiff ?OPP 2- Whether the plaintiff is entitled to vacant possession of the property, in dispute ?OPP 3- Whether the suit is not maintainable in the present form ? OPD 4- Whether the plaintiff has no locus standi to file the present suit ? OPD 5- Whether the plaintiff is estopped by his own act and conduct from filing the suit ? OPD 6- Whether the suit of the plaintiff is not properly valued for the purpose of Court fee and jurisdiction ?OPD 7- Relief.” 5. The parties led oral as well as documentary 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 dismissed the suit. Regular Second Appeal No. 2155 of 2006 6 6. Feeling aggrieved, an appeal was preferred by the plaintiff (appellant), which was also dismissed, whereas the cross-objections, filed by the defendant (now respondent), were accepted, by the Court of District Judge,Gurdaspur, vide its judgment and decree dated 09.08.2005. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed, by appellant/plaintiff. 8. I have heard the Counsel for the parties, and have gone through the record and perused the evidence, carefully. 9. The following substantial questions of law, arise, in this appeal, for the determination of this Court:- “1. Whether the first Appellate Court mis-read and mis-appreciated the evidence and recorded perverse finding that no legal and valid Will dated 20.03.1998 was executed by Babu Ram, in favour of the plaintiff (now appellant)? 2. Whether the findings recorded by the first Appellate Court accepting the cross-objections, filed by the defendant (now respondent), under Regular Second Appeal No. 2155 of 2006 7 Order 41 Rule 22 of the Code of Civil Procedure, are perverse, being based on mis-reading and mis- appreciation of evidence, are liable to be set aside ? 10. The Counsel for the appellant, submitted that Babu Ram, was the original owner of the property, in dispute. He was the husband of the plaintiff (now appellant). He further submitted that he (Babu Ram) executed a legal and valid registered Will dated 20.03.1998, in favour of the plaintiff, on the basis whereof, she became the owner of the property, in dispute after his death. He further submitted that the defendant (now respondent) was accommodated, in a portion of the house, by Babu Ram, being his son and his licence was revoked. He further submitted that the Courts below, recorded perverse findings that no legal and valid Will dated 20.03.1998 was executed by Babu Ram,(since deceased), in favour of the plaintiff (now appellant). He further submitted that even the first Regular Second Appeal No. 2155 of 2006 8 Appellate Court fell into a legal error in accepting the cross-objections under Order 41 Rule 22 of the Code of Civil Procedure, filed by the defendant (now respondent). He further submitted that the judgments and decrees of the Courts below, being illegal, were liable to be set aside. 11. On the other hand, the Counsel for the respondent, submitted that the first Appellate Court, on due scrutiny and appreciation of evidence, came to the conclusion that the legality and validity of the Will dated 20.03.1998, alleged to have been executed by Babu Ram, in favour of the plaintiff (now appellant) did not stand proved. He further submitted that the findings recorded by the Court below, holding the Will dated 20.03.1998, to be an invalid document, could not, by any stretch of imagination, be said to be perverse. He further submitted that even otherwise, this Court cannot interfere into the concurrent findings of fact, Regular Second Appeal No. 2155 of 2006 9 recorded by the Courts below, on a particular issue even if the same, may be grossly erroneous. Thus, the judgments and decrees of the Courts below, being legal and valid, are liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced 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 trial Court and the first Appellate Court, even Regular Second Appeal No. 2155 of 2006 10 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 Court, in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. The principal question that fell for decision before the Courts below, was as to whether, a legal and valid Will dated 20.03.1998 was executed by Babu Ram, (since deceased), in favour of the plaintiff, and whether she became the owner in possession, of the property, in dispute, on the basis of the same, after his death. The Will Ex.P1, was scribed by Darshan Singh, Deed Writer, (PW-1). However, during the course of cross- examination, it was stated by him, that he did not know the testator and the attesting witnesses personally. Darshan Regular Second Appeal No. 2155 of 2006 11 Singh, PW-2, is one of the attesting witnesses of the Will (Ex.P-1). It was stated by him, that the Will (Ex.P-1) was executed by Babu Ram, in favour of the plaintiff (now appellant) on 20.03.1998. It was read over and explained to him and after admitting the same to be correct, he thumb marked it, whereas he and Surender Kumar, MC, the other attesting witness, attested the same, in his presence. However, mere 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, 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. Regular Second Appeal No. 2155 of 2006 12 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 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 Regular Second Appeal No. 2155 of 2006 13 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 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 Regular Second Appeal No. 2155 of 2006 14 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 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 Regular Second Appeal No. 2155 of 2006 15 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, legality or otherwise of the Will (Ex.P-1) was required to be determined. The mere fact that the will (Ex.P-1) was registered, in itself, did not prove the genuineness thereof. It was proved from the evidence, on record, that Babu Ram had contracted two marriages. Regular Second Appeal No. 2155 of 2006 16 From the first marriage, Babu Ram had one son and three daughters, which fact was admitted by Sheela Rani, plaintiff (now appellant). From the second marriage, he was having one daughter and two sons, as admitted by Sheela Rani. However, there was not even a fleeting reference in the Will (Ex.P-1) as to why two sons from the second marriage were excluded from his property by Babu Ram. Nothing was brought, on record, that Babu Ram was having strained relations with his one son from the first marriage, two sons from the second marriage and one unmarried daughter. It was, no doubt, true that the Will is normally executed with a view to deflect from the natural course of succession, yet the testator is required to give reasons, as to why the other legal heirs, of equal degree, were ignored while executing the same. If either no reasons are recorded, in the will, or spelt out, Regular Second Appeal No. 2155 of 2006 17 from the evidence, produced, on record, regarding the deprivation of some of the legal heirs of equal degree, then certainly a doubt is cast on the genuineness of the same (Will). One could imagine that some daughters, if married, might have been ignored, on account of the reason that they were comfortably settled in their matrimonial homes. One daughter, who was unmarried was not given anything by the testator, though it was recorded, in the will that her marriage will be performed by his wife. Two sons from the second marriage were given nothing in the property. The defendant (respondent) was ignored on the ground that he was not serving the testator. No independent evidence was led regarding non-service by the respondent. Three sons and one unmarried daughter were deprived of his property by Babu Ram, at the time of alleged execution of will without any valid reason. The propounder failed to Regular Second Appeal No. 2155 of 2006 18 dispel this suspicious circumstance. The first Appellate Court was also right in coming to such a conclusion. 14. It was admitted by Darshan Singh, one of the attesting witnesses of the Will (Ex.P-1) that Babu Ram used to sign the documents, being literate. However, the Will, in question, was thumb-marked by him. No explanation was furnished, as to what was the necessity of thumb marking the will, especially when Babu Ram, testator being literate could sign the same. Had any reason been assigned for thumb marking the will instead of signing the same, the matter would have been considered, in the light thereof. This circumstance was rightly taken to be a suspicious one, casting a doubt on the genuineness, legality and validity of the Will, by the first Appellate Court. 15. The deed writer, did not obtain the signatures and thumb Regular Second Appeal No. 2155 of 2006 19 impressions of the testator, as also the marginal witnesses, in the deed writer register. He also did not record the contents of the Will or extract thereof, in his deed writer register. Had the will been scribed by the deed writer, in the normal course, it would have been his legal duty, to obtain the thumb impressions or signatures of the testator, as also of the attesting witnesses in the same. Had it been done, due corroboration to the execution, legality and validity of the Will, would have been furnished through that entry. No explanation was furnished, as to why, it was not done so. This clearly established that the Will was not executed in the manner, deposed to by Darshan Singh, but was a fabricated document. This circumstance was also rightly taken to be a suspicious one, casting a cloud of doubt on the validity and legality of the Will by the first Appellate Court. Regular Second Appeal No. 2155 of 2006 20 16. In the Will, wrong recitals were recorded, in as much as, it was recited therein that Babu Ram had one son and two daughters from the first marriage. On the other hand, it was proved from the evidence, on record, that Babu Ram had one son and three daughters from the first marriage. Had the Will been executed, in sound disposing mind by the testator, in favour of Sheela Rani, plaintiff (now appellant), then such an important fact would not have been wrongly mentioned, in the same. It can not be said that Babu Ram, (since deceased) did not know, as to how many sons and daughters, he was having from the first marriage. Had any explanation been furnished, as to how this wrong recital was recorded in the Will, the matter would have been considered, in the light thereof. In the absence of any explanation, having been furnished, by any of the witnesses, produced by the Regular Second Appeal No. 2155 of 2006 21 plaintiff, regarding the wrong recital, referred to above, recorded in the will, the first Appellate Court was right in coming to the conclusion that it was a suspicious circumstance casting a cloud of doubt on the genuineness of the same. 17. The fabrication and forgery of the Will was also proved from another very important circumstance, as Sheela Rani, plaintiff, during the course of cross-examination, stated that after about one month of the death of Babu Ram, she went to the bank for withdrawing the amount of Rs.16,000/-, deposited by him. She further stated that the bank officials told him, that she could withdraw the amount, deposited by Babu Ram, only if his Will, was prepared. She further stated that, ultimately, she withdrew the amount of Rs.16,000/- from the bank, deposited by Babu Ram (deceased). The statement, aforesaid made by Sheela Rani, plaintiff (now appellant) clearly proved that she Regular Second Appeal No. 2155 of 2006 22 went to the bank after about one month of the death of Babu Ram, for withdrawing the amount, deposited by him. Since she was not having any will at that time,she was told by the officials of the bank that she could not withdraw the amount, in the absence thereof. It was, at that time, that she thought of the necessity of preparing the same. It was, under these circumstances, that she, in connivance with the deed writer and the attesting witnesses forged and fabricated the Will and was successful in getting the same registered, may be by putting up some impostor. This material admission made by Sheela Rani, plaintiff (appellant), propounder of the Will, during the course of her cross-examination, was sufficient to prove that the Will was prepared after the death of Babu Ram, so as to usurp his moveable and immovable property. This fact was strengthened from her further cross- examination, when she admitted that a Regular Second Appeal No. 2155 of 2006 23 forged/fake document of disinheritance of Tarlok Chand, was prepared, during the life time of Babu Ram. A person who could go to the extent of preparing a fake document of disinheritance of Tarlok Chand, could go to any extent, in preparing any other fake document, so as to deprive other legal heirs of Babu Ram of his property. The first Appellate Court was, thus, right, in coming to the conclusion that the Will,(Ex.P-1) was a fabricated document. 18. It was proved from the evidence on record, that with a view to put