RSA No.1171 of 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1171 of 1991 Date of Decision: 12.2.2009 Dharam Singh & Ors. ..Appellants Vs. Bijender minor and Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Ms.Alka Sarin Advocate, for the appellants. None for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This regular second appeal has been directed against the judgments and decree dated 19.10.1989 and 26.4.1991 passed by the learned courts below dismissing the suit filed by the plaintiffs for RSA No.1171 of 1991 2 declaration with consequential relief of possession. The appellant/plaintiffs brought a suit for declaration with a consequential relief of possession on the pleadings that the parties to the suit are Jats and governed by customary law of District Rohtak in the matter of alienation and Will etc. The plaintiffs claimed that after the death of Siri Chand, Bijender minor son of Same claimed himself to be the owner of the land left by deceased Siri Chand on the basis of Will alleged to have been executed by him. Will was set said to be illegal, sham transaction, which could not be acted upon, thus, was not binding on the rights of the plaintiffs being contrary to the customary law prevalent among the Jats of Rohtak. It was alleged that the deceased Siri Chand was not in sound disposing mind due to old age and the Will was the outcome of undue influence, fraud and cheating played by the defendants on the deceased Siri Chand. It was further the case of the plaintiff/appellants that during the life time of Siri Chand and Bhagwana one Mohan Lal brother of Bhagwana and Siri Chand had executed a Will in favour of the plaintiff out of love and affection. Against the said Will a civil suit was filed challenging the right of said Mohan Lal to execute the Will and the then Sub Judge held that the executant of the said Will was not competent to execute the Will as the property in his said hand was ancestral. Against the order of learned trial court an appeal was preferred against Siri Chand and Bhagwana, and said Siri Chand and Bhagwana relinquished their right in the suit property and agreed that sons of Bhagwana, plaintiffs, and sons of Pale Ram were equally entitled to succeed to the estate of Mohan Lal in equal share and in RSA No.1171 of 1991 3 the said appeal plaintiffs got 1/6th share of Mohan Lal deceased. It was also the case of the plaintiffs that sons of Sri Chand and Bhagwana relinquished their rights in the suit property, therefore, through the alleged will, they were estopped from claiming any right in the suit property. The pedigree table of the parties reads as under:- Sheo Karan | Siri Chand Bhagwana Mohan Lal Kali Ram Ram Gopal @ Paley Ram | | | | Same Singh Dharambir Singh dalbir Singh Debi Singh The suit was contested by defendant No.1 on the plea that the pe-digree table was not clear, though he admitted the death of Siri Chand on 2.3.1981. It was denied that the suit land was ancestral. It was, however, admitted that the parties were Jats but it was contended that they were not governed by customary law. It was further the case of the defendant/respondent that sonless proprietor who is governed by customary law has got every right to alienate the suit property through the Will in lieu of the services rendered by the legatees. Defendant No.1, thus, asserted his rights to be owner in possession. It was also claimed that in view of the civil suit No.521 decided on 13.12.1981 and appeal No.1/13 of 1987 decided on 28.3.1987, the plaintiff/appellant was estopped from challenging the said Will and further claimed that Siri Chand was competent to execute the Will. It was denied RSA No.1171 of 1991 4 that Siri Chand was not in sound disposing mind. It was claimed that the Will was rightly executed by the executant and prayed that the suit of the plaintiff/appellants be dismissed with costs. The other defendants raised a preliminary objection that in view of the decision in the suit and appeal, the matter was res judicata between the parties as such the suit was liable to be dismissed. The plea of suit being time barred was also raised on the ground that the plaintiffs had knowledge about the execution of the Will by Siri Chand in favour of the defendant No.1. The suit for mere declaration, therefore, was not maintainable. Locus standi to file the suit was challenged. It was denied by the contesting defendant that the suit land is ancestral, it was also pleaded that the matter already stood decided in the previous litigation. Plea as taken by defendant No.1 was also taken that the deceased Siri Chand was competent to execute the Will. On the pleadings of the parties the learned trial court was pleased to frame the following issues:- 1. Whether the suit property is ancestral qua the parties? OPP 2. Whether Siri Chand executed a valid will in favour of defendant No.1 on 2.2.1981? OPP 1-A.Whether the parties are agriculturists and are governed by custom in the matter of alienation and will etc.?OPP 3. If issue No.2 is proved, whether Siri Chand was not competent to execute the will? OPP 4. Whether the suit is not maintainable in the present form? RSA No.1171 of 1991 5 OPD 5. Whether the plaintiffs are estopped by their own at and conduct to file the present suit? OPD 6. Whether the suit is barred by time? OPD 7. Whether the suit is not properly valued? OPD 8. Whether decree dated 28.3.87 in suit titled Dharam Singh Vs. Bhagwana operates as res judicata qua the parties? OPD 9. Whether the plaintiffs have no locus standi to file the present suit? OPD 10.Whether the suit is bad for non-joinder of necessary parties? OPD 11 Relief On appreciation of evidence learned courts below held that the suit property was ancestral property and that the parties to the suit were governed by customary law. Learned courts further held that the parties were related as per pe-digree table referred to above. Defendant No.1 was held to be in possession of the disputed land. It was observed that the plaintiffs had filed an application for being impleaded as party in the suit filed against Bijender defendant regarding the same Will but the said application was dismissed. Learned courts below, however, held that in view of the Full Bench judgment of this court in the case of Ratti Ram Vs. Shiv Charan AIR 1986 Punjab & Hayana 376 the Will could not be contested. It was held that though the parties are governed by customs amongst Jats of Rohtak even then there was no bar to alienate the suit property by sonless proprietor. RSA No.1171 of 1991 6 The Full Bench of this court in the case Ratti Ram Vs. Shiv Charan (supra) was pleased to lay down as under:- “ The power of a sonless proprietor in Rohtak Tehsil to alienate his ancestral property for consideration is recognized even when there is no necessity for sale, provided, of course the alienation is not for an immoral purpose. The consideration for an alienation may either be made in cash or in kind, i.e. in the form of services and as there is no distinction between a transfer inter vivos and a transfer which takes effect after the death of the transferor, it would be reasonable to infer that testamentary disposition of ancestral land in favour of a close relation in lieu of services is recognized under the customary law. As far as the power of a sonless proprietor governed by customary law in Rohtak Tehsil to alienate the ancestral land without necessity, is concerned, the rule has now been well settled that it is open to him to do so provided of course the sale is not for an immoral purpose.” Ms.Alka Sarin, learned senior counsel appearing on behalf of the appellants raised the following substantial question of law for consideration of this court in this appeal:- “Whether the judgment and decree passed by the learned courts below is the outcome of misreading of Full Bench Judgment of this court in the case of Ratti Ram Vs. Shiv Charan RSA No.1171 of 1991 7 (supra), 2. Whether the finding on issue No.2 are liable to be recorded in view of the failure of the plaintiffs to prove the Will dated 2.3.1981 in terms of Section 63 of the Succession Act? In support of the substantial question of law learned counsel appearing on behalf of the appellant referred to Full Bench Judgment of this court in the case of Ratti Ram Vs. Shiv Charan (supra) to contend that the Hon'ble Full Bench upheld the right of sonless proprietor to alienate the property by Will for consideration, if it is not for immoral purpose, but the case was not covered by the decision of Hon'ble Full Bench in as much as no findings has been recorded by the learned courts below that defendant No.1 rendered any services to the executor of the Will. In the absence of any such finding it could not be held that Siri Chand could alienate the property by Will. The contention of the learned counsel further is that defendant No.1 was a minor and therefore, it could not be said that he could render any service to the executor of the Will. However, on consideration of the matter, I find no force in this contention. The executor of the Will categorically mentioned that the Will was being executed due to love and affection and the services rendered by defendant No.1. It could not be said that merely because defendant No.1 is minor he was incapable of rendering services to the executant. If the will is proved on record contents thereof would show that the Will was for consideration of the services rendered. The learned courts below, therefore, were justified in non suiting the plaintiff/appellants. RSA No.1171 of 1991 8 The first substantial questions of law is answered against the appellant/plaintiff. Learned counsel for the appellant also contended that in the present case the execution of the Will was not proved in accordance with the law, even though attesting witnesses were dead. In support of substantial question of law learned counsel for the appellant placed reliance on the judgment of Hon'ble Supreme Court in the case of N.Kamalam (dead) and Anr. Vs. Ayyasamy & Anr. JT 2001(6) SC 219 wherein Hon'ble Supreme Court has been pleased to lay down as under:- “ The requirement of attestation presently in the country is statutory in nature, as noticed hereinbefore, and cannot as such be done away with, under any circumstances. While it is true that in a testamentary disposition, the intent of the attestor shall have to be assessed in its proper perspective but that does not, however, mean and imply non-compliance of statutory requirement. The intention of the attestor and its paramount importance cannot thwart the statutory requirement. No doubt the scribe has subscribed his signature but scribe in accordance with common English parlance mean and imply the person who writes the document. Significantly, however, in England the King's Secretary is popularly known as Scribaregis. Be that as it may, in common parlance an attribute of scribe as a mere writer as noticed above, does not stretch the matter further. In the contextual facts, while the writer did in fact, subscribe his signature but the same does not under rate the statutory RSA No.1171 of 1991 9 requirement of attestation as more fully described hereinbefore. True it is, that strenuous submissions have been made in support of the appeal that attesting witnesses have no other role to play but to subscribe their signatures in order to prove the genuineness of the Will and that, in fact, when the scribe sign the Will, the same can be read as attestation. Needless to record, however, that the scribe was examined and it is on this score the learned counsel contended that the evidence of an attestor thus, can be said to be on record so as to make the document namely the Will in the instant case, thus, otherwise in accordance with law.” The contention of the learned counsel for the appellants that the previous suit being not inter se between the parties was not res judicata and therefore, the defendant/respondent was to prove the due execution of the Will as provided under section 63 (c) of the Succession Act and having failed to do so the finding on issue No.2 cannot be sustained. On consideration of the matter, I find no force in this contention also. It may be noticed that in the previous litigation with respect to the Will dated 2.2.1981, registered Will stood proved as per provisions of Section 63 (c) of the Succession Act. Therefore, it cannot be said that the Will was not proved as contended. The judgment and decree earlier passed was not disputed and it was also not disputed that the Will dated 2.2.1981 stood proved in the earlier litigation. The second substantial question of law, therefore, also does not arise for consideration in this appeal. The RSA No.1171 of 1991 10 learned courts below rightly held that the Will stood proved in the previous litigation. Second question of law is also answered against the appellant/plaintiffs. The previous judgment upholding the will was duly exhibited. Hon'ble Supreme Court in the case of Kashmir Singh Vs. Harnam Singh & Anr., 2008 (2) RCR (Civil) 688 has been pleased to lay down that the question of law raised will not be considered to be substantial question of law if it stands already decided by a larger Bench of the High Court concerned or the Privy Council or by the Federal Court or by the Supreme Court. The right of alienation of Jats governed by customary law stands already decided by the Full Bench of this court. Consequently, the appeal is ordered to be dismissed but with no order as to costs. 12.02.2009 (Vinod K.Sharma) rp Judge