Regular Second Appeal No.3472 of 2004. -1- In the High Court of Punjab and Haryana at Chandigarh. Regular Second Appeal No.3472 of 2004. Date of decision:9-5-2008 Gurcharan Singh and others. ...Appellants. Versus Angrez Kaur and another. ...Respondents. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present: Mr. Arun Jain, Senior Advocate with Mr. Sachin Sood, Advocate for the appellants. Mr.S.N.Chopra, Advocate for the respondents. ... K. C. Puri, J. Judgment. Under challenge, in this appeal, is the judgment and decree dated 13.8.2004 passed by Shri J.S.Klar, the then Additional District Judge, Fatehgarh Sahib whereby he accepted the appeal, set aside the judgment and decree dated 5.3.2004 delivered by Shri S.S.Panesar,the then Additional Civil Judge (Senior Division), Amloh and resultantly decreed the suit of the plaintiffs for declaration and possession against Regular Second Appeal No.3472 of 2004. -2- the defendants. The necessary facts, as culled out from the pleadings of the parties, are that the plaintiffs filed a suit for declaration to the effect that the decree and judgment in Civil Suit No.556 of 21.9.1994 titled Gurcharan Singh and others Versus Bhajan Singh, decided on 9.1.1995 by the then Additional Senior Sub Judge, Amloh in respect of property of Bhajan Singh mentioned at letters ABC&D in the head note of the plaint were wrong, without jurisdiction, illegal, null and void, ineffective and inoperative qua their proprietary rights as heirs of said Bhajan Singh and that they were the owners of the suit land and for possession of the suit land as entered in the Jamabandi for the year 1990-91 situated within the revenue limits of village Siraj Majra, Tehsil Amloh, District Fatehgarh Sahib on the ground that Bhajan Singh son of Sohan Singh, resident of village Siraj Majra was the owner and in possession of land mentioned at letters ABCD. The defendants have no concern or connection with said Bhajan Singh, who were not related to Bhajan Singh, in any manner. On the basis of wrong allegations, the defendants in a secret and collusive manner filed Civil Suit No.556 of 21.9.1994 against Bhajan Singh and obtained judgment and decree regarding the suit land. The said judgment and decree were against facts, law, illegal, null and void, without jurisdiction,ineffective and inoperative qua their rights being owners as heirs of Bhajan Singh on the following grounds:- Regular Second Appeal No.3472 of 2004. -3- (a) That there has never been any family settlement between defendants and said Bhajan Singh nor there was any relationship between them; (b) That the judgment and decree were inadmissible being based upon mere admissions alleged to be of said Bhajan Singh and for want of registration and stamps and were a device to cheat the State of Punjab and the stamps and registration charges; © That the judgment and decree in question conferred no right or title upon the defendants and could not be acted in the revenue records; (d) That said Bhajan Singh had no knowledge of the contents of the plaint or written statement or of alleged statement,if any, made by him in the Court in the said suit and he was illiterate and (e) That the suit was fraudulent and it was fraud upon the Court. It is further averred that the defendants have encroached upon the suit land and refused to deliver back the possession to the plaintiffs and have also refused to admit the plaintiffs as owners of the suit land being heirs of Bhajan Singh, now deceased. On notice, the defendants contested the suit by filing written statement. They admitted the contents of para No.1 of the Regular Second Appeal No.3472 of 2004. -4- plaint. They denied that the defendants had no concern with Bhajan Singh. Rather, Bhajan Singh was their uncle in relationship and belonged to the same family. It was also denied that they, in a secret or collusive manner, filed Civil Suit No.556 of 21.9.1994, decided on 9.1.1995. They averred that Bhajan Singh voluntarily suffered decree dated 9.1.1995 on his own free will on the basis of family settlement effected by Bhajan Singh on 15.6.1994 and relinquished his proprietary rights in their favour. They denied that the judgment and decree were either illegal, against law and facts, without jurisdiction, ineffective or inoperative against the rights of the plaintiffs. The judgment and decree dated 9.1.1995 were passed on the basis of family settlement dated 15.6.1994. It was also denied that the said judgment and decree were inadmissible for want of registration. Rather, the said judgment and decree conferred full ownership rights upon them. The said decree was incorporated in the revenue record and mutation was duly sanctioned on its basis. Bhajan Singh died on 24.4.1998 after long time of passing the judgment and decree but he never raised any objection during his life time against the judgment and decree in question. It was also denied that Bhajan Singh had no knowledge regarding the contents of the plaint or the written statement. Prior to the filing of the suit, Bhajan Singh executed a valid and legal Will dated 2.9.1986 in their favour which was also got registered by Bhajan Singh. Said Bhajan Singh executed the Will dated 2.9.1986 in lieu of services rendered by them. Regular Second Appeal No.3472 of 2004. -5- Bhajan Singh lived for many years with them and had no relationship with the plaintiffs. It was also denied that the said judgment and decree were the result of any fraud played upon the Court. Family settlement was effected by Bhajan Singh because he apprehended litigation about his estate. They were in possession of the suit land since family settlement was effected by Bhajan Singh and their possession was also admitted by Bhajan Singh when he appeared in the Court in the suit filed by them and made a statement in the Court and also filed written statement admitting their claim. Bhajan Singh also admitted the Will executed by him in their favour. The allegations that the plaintiffs were the only and nearest heirs of Bhajan Singh were denied. Even if the judgment and decree in question were found to be inadmissible, in that eventuality, they have also succeeded to the estate of Bhajan Singh on the basis of Will dated 2.9.1986. The plaintiffs have no concern or connection with the suit land and they have no cause of action to file the present suit. The plaintiffs were not entitled to any declaration as prayed for and the suit was liable to be dismissed. The defendants also took certain objections to the effect that the suit as framed was not maintainable and that the plaint was liable to be rejected under Order 7 Rule 11 CPC for want of cause of action. From the pleadings of the parties, the learned trial Court framed the following issues:- Regular Second Appeal No.3472 of 2004. -6- 1. Whether impugned judgment and decree passed in Civil Suit No.556 of 21.9.94 decided on 9.1.95 titled as Gurcharan Singh etc. vs. Bhajan Singh, by S.Dalip Singh, the then Additional Senior Sub Judge, Amloh in respect of property earlier in the name of Bhajan Singh in the subject matter of the suit is illegal, null and void or otherwise bad as alleged in the plaint. If so, its effect ?OPP. 2. Whether plaintiffs are entitled to possession of the suit land? OPP. 3. Whether Shri Bhajan Singh executed a legal and valid Will dated 9.2.98 in favour of defendants. If so, its effect?OPD. 4. Whether suit is not maintainable and competent in the present form? OPD. 5. Whether plaint is liable to be rejected under Order 7 Rule 11 CPC ?OPD. 6. Whether suit is within limitation ?OPD. 7. Whether defendants have taken possession of the suit land from plaintiffs, three weeks before filing of the suit?OPD. 8. Relief. The learned trial Court decided issue Nos.1,2 and 7 against the plaintiff, issue No.6 in favour of the plaintiffs, issue No.4 in favour Regular Second Appeal No.3472 of 2004. -7- of the defendants and issue Nos.3 and 5 against the defendants. As a result of said findings, the suit of the plaintiffs was dismissed vide judgment and decree dated 5.3.2003 passed by the then Additional Civil Judge (Junior Division), Amloh. Feeling aggrieved, the plaintiffs filed an appeal which was accepted by Shri J.S.Klar, the then Additional District Judge, Fatehgarh Sahib vide impugned judgment and decree dated 13.8.2004. Feeling dis-satisfied with the said impugned judgment and decree, the defendants have preferred the instant appeal. I have heard arguments addressed by the learned counsel for the parties and have carefully perused the entire record. The appellants have framed the following substantial questions of law:- (a) Whether in the facts and circumstances of the instant case, the decree dated 9.1.1995 which has, otherwise, been proved to have been suffered by Bhajan Singh in favour of the appellant, could be ignored by the learned Ist Appellate Court on the ground of non-registration particularly when the decree was based on earlier family settlement? (b) Whether in the facts and circumstances of the instant case, the suit filed by the plaintiff/respondents could be said to be within limitation? © Whether in the facts and circumstances of the instant Regular Second Appeal No.3472 of 2004. -8- case, the registered Will in favour of the appellants could be ignored by the learned courts below when the appellants had led affirmative evidence proving the due execution and validity of the Will? (d) Whether the interpretation put by the learned Ist Appellate Court to the meaning of Family can be sustained in law? Firstly, point of limitation has been taken up by Mr. Arun Jain, Senior Advocate. It is submitted that the plaintiffs have challenged the decree dated 9.1.1995. Mutation on the basis of said decree has been attested on 2.3.1995, Exhibit D-7. The present suit has been filed on 19.5.1998 beyond the period of three years. The learned trial Court should have non-suited the plaintiffs on the ground of limitation. In authority Smt. Sharifan alias Shanti, Versus Ibrahim alias Dharam Vir reported in 1975 P.L.J.293, it has been held that limitation for a declaratory suit begins to run when the cause of action first accrues. The cause of action accrued on 9.1.1995, the date of passing the decree and at the most on 2.3.1995, when the mutation was attested. So, the suit of the plaintiffs is hopelessly time barred. In reply to the above noted submissions, the learned counsel for the respondents has submitted that it is a case of inheritance. Bhajan Singh died on 24.4.1998 and the present suit was Regular Second Appeal No.3472 of 2004. -9- filed on 19.5.1998 i.e within few days of his death. There is no limitation for filing the suit on the basis of inheritance. Authority in Sharifan's case (supra) has been set aside by a Division Bench of Punjab & Haryana High Court in authority reported as Ibrahim alias Dharam Vir Versus Smt. Sharifan alias Shanti, 1979 P.L.J.469. I have carefully considered the submissions made by both sides and have gone through the record of the case. So far as admitted facts are concerned, decree under challenge is dated 9.1.1995. Mutation, on the basis of decree, has been attested on 2.3.1995. Bhajan Singh died on 24.4.1998 and the present suit has been filed on 19.5.1998. Authority reported in Smt. Sharifan alias Shanti's case (supra), has been set aside by the Division Bench in Ibrahim's (supra). This fact has not been denied by the learned counsel for the appellants who has submitted that the said authority was not in his knowledge. Both the Courts below have returned a finding that the suit is within limitation. The plaintiffs could not file any suit till the death of Bhajan Singh. The suit has been filed within few days of death of Bhajan Singh, claiming inheritance. There is no limitation for filing the suit on the basis of inheritance. Needless to say that the plaintiffs were not parties to the suit culminating into decree dated 9.1.1995. It is not the case of the appellants that the plaintiffs were present at the time of attestation of mutation on 2.3.1995 on the basis of decree dated Regular Second Appeal No.3472 of 2004. -10- 9.1.1995. So, in view of above discussion, the point of limitation stands determined against the appellants. The other point submitted by the counsel for the appellants is regarding the registered Will dated 2.9.1986. It is submitted that Bhajan Singh was living with the appellants. They have been serving him during his life time. In reward to the services rendered by the appellants during his life time, Bhajan Singh has executed a registered Will on 2.9.1986 in favour of the appellants of his free will. Bhajan Singh remained alive till 1995. He has not revoked the Will. The Will is a registered document and it dispels any circumstance against the appellants. Both the Courts below have not accepted the Will on the ground that one attesting witness of the Will was alive and has not been examined. It is submitted that the Will is duly proved on the file by examining DW-4 Ashok Kumar, deed writer. This witness has categorically proved the Will. The appellants also examined DW-7 Dr.Aul K. Singla, Handwriting and Finger Prints Expert, who has also compared the thumb impressions of Bhajan Singh on the Will with the standard thumb impressions of Bhajan Singh and had reached at the conclusion that both tallied. It is submitted that scribe Ashok Kumar should have been treated as a marginal witness of the Will. So, the Will in question is duly proved on the file. It is further submitted that the testator, during his life time, has admitted the execution of the Will in a suit for declaration, Exhibit Regular Second Appeal No.3472 of 2004. -11- DW9/A. In para No.2 of the plaint, the present appellants have pleaded registered Will dated 2.9.1986, in question. That para has been admitted by Bhajan Singh by filing written statement, Exhibit DW10/A. So, once the execution of the Will has been admitted, therefore, the same stands fully proved. To support his contention that scribe can be treated as a marginal witness, the counsel for the appellants has relied upon the following authorities:- 1. Ujagar Singh v. Chanan Singh and others, AIR 1986 P&H 230. 2. Ram Lal and Another Versus Mohinder Singh and Others, 2004(2) Haryana Rent Reporter 295. It is further submitted that the Will is always executed to dis-inherit the natural heirs. The appellants have been serving Bhajan Singh, during his life time. He was treating the appellants as his nephews. So, it cannot be said that there is wrong recital in the Will describing the appellants as nephews. It is further submitted that the opposite counsel may argue that Bhajan Singh has stated in the Will that he was without any wife or children and may argue that that fact is wrong. In this regard, it is submitted that Gurmail Kaur has taken divorce in the year 1973. Both the plaintiffs were living separately and were married. So, non description of relationship of the plaintiffs and Gurmail Kaur does not make the Will as invalid document. Regular Second Appeal No.3472 of 2004. -12- In reply to the above noted submissions,Mr. S.N.Chopra, Advocate has submitted that scribe can be taken as an attesting witness only in case he has the intention to sign the Will as an attesting witness. The scribe has specifically mentioned that he was scribing the document and no where mentioned that he had the intention to attest the Will in question. The Hon'ble Supreme Court and the Punjab & Haryana High Court have held in various authorities that scribe can be taken as an attesting witness only in case he has put his signatures with animo attesandi. To support this contention, the counsel for the respondents has relied upon the following authorities:- 1. Mohinder and Ors. Versus Bugli Devi widow of Nagina and Ors., All India Hindu Law Reporter 188. 2. N.Kamalam (dead) and Anr. Vs. Ayyasamy & Anr., 2001(2) Apex Court Journal 8 (S.C). It is further submitted that the scribe has categorically stated that he did not know the executant personally and, on that count also, he cannot be taken to be an attesting witness. It is further submitted that to prove the Will, one attesting witness is necessary to be examined if he is alive. In the present case, it is an admitted case of the parties that one witness was alive at the time of proving the Will. That witness has not been examined. So, the Will is not proved in accordance with law. The Will has to take effect after Regular Second Appeal No.3472 of 2004. -13- the death of Bhajan Singh. His admission in the written statement is not sufficient to prove the Will, in view of authority reported as R.Saraswathy v. P. Bhavathy Ammal and another, AIR 1989 Kerala 228(1). In the said ruling, it has been held that an admission is the best evidence but in case of Will if the testator has expired, his admission during his life time is not sufficient. It is further submitted that in para No.1, it has been pleaded that the appellants are the nephews of Bhajan Singh. In the written statement, relied upon by the appellants, all averments have been admitted. So, this fact clearly shows that the alleged admission made by Bhajan Singh is not voluntary and cannot be taken into account. The Will is to be proved independently in the present case and the appellants have failed to prove the Will in question. I have carefully considered the submission made by both sides and have carefully gone through the record of the case. Both the Courts below have returned a definite finding that the Will is not proved in accordance with law. It is not disputed, during the course of arguments, that to prove the Will, one attesting witness has to be examined if he is alive. It is also not disputed that one witness was alive at the time of leading evidence by the appellants and he has not been examined. The appellants have relied upon the testimony of scribe as well as expert to prove the Will. The expert has simply proved the fact that thumb impressions of Bhajan Singh appeared on the Will. Regular Second Appeal No.3472 of 2004. -14- The submissions made by the counsel for the appellants to the effect that scribe be taken as an attesting witness cannot be accepted. The scribe has categorically stated that he did not know the executant personally. So, once he has stated that he did not know the testator personally, as such, he was not in a position to state that it was actually Bhajan Singh who had put his thumb impressions on the Will in question. Sections 68 and 69 of the Indian Evidence Act lay down the procedure for proving the Will. The said provisions of law are re- produced for ready reference as under:- “68. Proof of execution of document required by law to be attested.-If a document is required by law to be attested, it shall not be used as evidence until 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. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. 69. Proof where no attesting witness found.-If no such attesting witness can be found, or if the document purports Regular Second Appeal No.3472 of 2004. -15- to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.” So, from the reading of Section 68, it is clear that in case of Will, the beneficiary has to produce one attesting witness in the Court to prove the Will. Section 69 only comes into operation if no attesting witness can be found. In the present case, from the evidence on the file, it has come on the record that one attesting witness was alive but he has not been examined. So, both the Courts below have rightly held that the Will in question is not proved in accordance with law. Mere proving the thumb impressions on the Will is not sufficient to prove the execution of Will. Moreover, un-true statements are there in the Will in question. It has been mentioned in the Will that beneficiaries are the nephews of Bhajan Singh and that fact is belied by the statement of the appellant as well as by pedigree table placed on the file. In the pedigree table, the appellants are not remotely connected with Bhajan Singh. There is further recital in the Will that Bhajan Singh has no wife or children. The plaintiffs are the daughters of Bhajan Singh and that fact has been proved on the file beyond doubt. Even in the writing of Talaqnama, relied upon the appellants, it has been mentioned that Bhajan Singh has two daughters and also reference of taking divorce Regular Second Appeal No.3472 of 2004. -16- from his wife Gurmail Kaur. So, the above-said circumstances also make the Will suspicious. The scribe can be taken as an attesting witness of the Will only if he has animo attesandi. The scribe of the Will, in the present case, has not stated that he attested the Will as an attesting witness. He has described himself as scribe of the Will. A Division Bench of our own High Court in Mohinder's case (supra), has categorically stated that the scribe of the Will or the Registrar cannot be taken as attesting witnesses unless the scribe mentioned himself as attesting witness. In N.Kamalam's case (supra), the Hon'ble Apex Court has held that a testator should witness the execution thereby thus implying his presence on the occasion and secondly he should certify for execution by subscribing his name as a witness which implies consciousness and intention to attest. In para No.28 of that judgment, the Hon'ble Apex Court has held as under:- “28. It was next contended that in the event of there being an intent to attest, that itself should be sufficient compliance of the requirement of law. While the introduction of the concept of animus to attest cannot be doubted in any way whatsoever and also do feel it relevant in the matter of proof of a document requiring attestation by relevant statutes but the same is dependent on the fact Regular Second Appeal No.3472 of 2004. -17- situation. The learned Judge as noticed above has himself recorded that two significant requirements of the term 'attest' viz.,that the testator should witness the execution thereby thus implying his presence on the occasion and secondly that he should certify for execution by subscribing his name as a witness which implies consciousness and intention to attest. Unfortunately, however, the factual score presently available does not but depict otherwise. The scribe's presence cannot be doubted but the issue is not what it is being said to be in support of the appeal that the scribe having subscribed his signature, question of further attestation would not arise-this issue unfortunately we are not in a position to lend concurrence with. The Will is produced, records the following at page 4 thereof: ( page 106 of the P.Book). “Witness L.T.I. Of Masane Gowder. 1.(Sd/- ( T. Subbiya) s/o Veerai Gowder, 25/298, Thomas street, Coimbatore. 2. (sd/-) B. Govindaraju s/o S. Balagurumurthy Chettiar, 25/250, Rangai Gowder Street, Coimbatore. Sd/- Arunachalam. The animus to attest, thus, is not available,