R.S.A. No. 170 of 1991 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 170 of 1991 (O&M) Date of decision: 21.03.2009 Khushal Chand and another ....Appellants Versus Bal Kishan and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Amit Rawal, Advocate, for the appellants. Mr. C.M. Munjal, Advocate, for respondent No. 1. ***** VINOD K. SHARMA, J This is plaintiffs' regular second appeal against the judgments and decree passed by the learned Courts below vide which the suit for declaration to the effect that the plaintiffs are owner of house No. VIII- 302, Mohalla Nanakpuri, Dhuri Line, Millar Ganj, Ludhiana, and possession thereof with the relief of permanent injunction for restraining defendant No. 1 from realising any rent from defendants No. 2 to 5, and further restraining defendant No. 1 from alienating the house in question, has been ordered to be dismissed. R.S.A. No. 170 of 1991 (O&M) -2- The suit was brought on the pleading that Smt. Chanan Devi wife of Sh. Anant Ram S/o Sh. Devi Chand resident of Mohalla Nanakpuri, Ludhiana, was the owner of house No. VIII-302, she died on June 29, 1982. Sh. Anant Ram and Smt. Chanan Devi did not have any issue. Defendant No. 1 i.e. Bal Kishan was said to be residing with them for some time. Sh. Anant Ram died in May, 1977. It was further the case set up that defendant No.1 was living outside, but few years back he had come back to Ludhiana and started residing in the house in dispute. The relations of defendant No. 1, Anant Ram and Chanan Devi were said to be strained, as he was mis-behaving with them, and even used to give them beating. Defendant No. 1 was said to have been adopted by Anant Ram and Chanan Devi, as they had no issue. Out of the natural love and affection, Anant Ram purchased a plot in the name of defendant No. 1. Bal Kishan gifted this plot in favour of Chanan Devi. Thereafter, Chanan Devi became its exclusive owner in possession and remained as such till her death i.e. June 29, 1982. After the execution of the gift deed, for some time, the relations between Bal Kishan, Anant Ram and Chanan Devi remained normal. Thereafter, Chanan Devi built a house over the plot and defendant No. 1 became greedy and started mis-behaving with Chanan Devi and Anant Ram, and started pressurising them to transfer the property in his favour. The request of defendant No. 1 was not agreed to, and then he started maltreating them. Out of love and affection, Chanan Devi executed a valid 'Will' dated January 12, 1967 in favour of plainitff/appellants bequeathing her entire property. Smt. Chanan Devi R.S.A. No. 170 of 1991 (O&M) -3- was also said to have executed another 'Will' dated November 21, 1968 in favour of the plainitff/appellants, which was said to be last and valid 'Will' executed by her while in sound deposing mind. The original 'Will' was said to have been lost and the report in this regard was lodged with the police on October 27, 1982. The original 'Will' could not be traced out. However, the plaintiff/appellants obtained the copy of the said 'Will'. The plainitiffs, thus, claimed, that they have become owner of the property in dispute and entitled to physical possession thereof. After the death of Chanan Devi, plaintiff asked defendant No. 1 to admit the rights of the plaintiffs over the house in dispute, and to admit them as owner of the property. Request was also made for not recovering the rent of the rented portions from defendants No. 2 to 5. The plaintiffs also set up a case that now it has come to their knowledge that defendants No. 2 and 3 have surrendered possession and illegally handed over the possession of the property to defendant No. 1 to which he was not entitled to. The plaintiffs claimed that they were entitled to possession of the property in dispute. The case set up was that defendants No. 4 and 5 have also surrendered their possession in favour of defendant No. 1. Thus, possession of the property was sought. It was also claimed by the plaintiffs that plaintiff No. 2 is the adopted daughter of Chanan Devi and Anant Ram, who was married with plaintiff No. 1 at Kabas in the year 1964 where Anant Ram was posted as mechanic in a fetilizer factory. Plaintiff No. 1 was said to have purchased a plot and built his own house, which was adjoining the house in dispute. However, the plaintiffs continued serving Chanan Devi and R.S.A. No. 170 of 1991 (O&M) -4- Anant Ram till their death. On notice, defendants No. 4 to 5 did not put in appearance, and were proceeded ex parte. Similarly, the suit was not contensted by defendants no. 2 and 3. The suit was contested by defendant No. 1 wherein preliminary objection was taken that the suit was mis-conceived and mala fide and had been filed with an ulterior motive to grab the property in dispute. It was pleaded by defendant No. 1 that the property in dispute was purchased by defendant No.1 in the year 1963 from his own funds and thereafter he raised construction thereon by spending huge amount and since then he and his family members were residing and occupying the same. A positive stand was taken that there was no occasion to execute a 'Will' in favour of plaintiffs as defendant No.1 was an adopted son of Sh. Anant Ram and Smt. Chanan Devi and when was only a child, an adoption deed was also scribed and registered at Rawalpindi. Defendant No. 1 was brought up, educated and married by Chanan Devi and Anant Ram. The husband of Chanan Devi was said to be working in military as Fitter, who retired from service in the year 1961 and died in May, 1978 at Ludhiana in the house in dispute, where he was residing along with family members of defendant No.1 , who had been serving them. It was also the case that after the purchase of the plot, over which the house in dispute was constructed, defendant No. 1 gifted the same to Smt. Chanan Devi, his mother, as a token of love, affection and respect, as it was within the knowledge of defendant No.1 that after her death, house in dispute was again to revert back to him being the only R.S.A. No. 170 of 1991 (O&M) -5- legal heir of Smt. Chanan Devi, who also executed a valid and legal 'Will' in favour of answering defendant. The alleged 'Wills' in favour of the plaintiffs were said to be forged, fabricated and pieces of waste papers. It was claimed that Smt. Chanan Devi was residing with defendant No. 1, who had served and looked after her and even got her treated in Kapoor Memorial Hospital as well as from some other doctors privately, and after her death had performed all rites etc. On merits, it was pleaded that Sh. Anant Ram and Smt. Chanan Devi had no issue, and defendant No. 1 was adopted in the year 1935 by a registered adoption deed. He was educated, married and brought up by Sh. Anant Ram and Smt. Chanan Devi and used to reside with his adopted parents. Defendant No. 1 was doing service out of Punjab since March, 1971 and after leaving service was residing in the disputed house along with his family members. Defendant No. 1 denied that his relations were ever strained with Sh. Anant Ram and Smt. Chanan Devi. The allegation of mis-behaviour was also denied. It was also denied that Sh. Anant Ram had purchased a plot in the name of defendant No. 1 out of natural love and affection. The stand was also taken that Sh. Anant Ram was not doing any service in the year 1963 so question of purchasing plot in his name did not arise. It was admitted that defendant No. 1 had gifted plot to Smt. Chanan Devi. The allegations that he became greedy and started mis-behaving were also denied. It was denied that plaintiff never served Sh. Anant Ram and Smt. Chanan Devi. The execution of 'Will' dated January 12, 1967 in favour of plaintiffs was also denied, which was said to be forged and fabricated document. It was claimed that Smt. R.S.A. No. 170 of 1991 (O&M) -6- Chanan Devi had executed a 'Will' on March 31, 1982 in favour of defendant No. 1, which was the only 'Will' left by the deceased. The 'Will' said to have been executed in favour of plainitffs on November 21, 1968 was also denied. It was also denied that the property was surrendered by tenants illegaly. It was also denied that plaintiff No. 2 was ever adopted. It was also denied that she was married to plaintiff No. 1 at Kabas. However, it was admitted that Sh. Anant Ram was working in fertilizer factory at Utterlie. The factum of purchase of plot by plaintiff No. 1 was also deniend. However, it was admitted that he was occupying the house near the house of Sh. Anant Ram and Smt. Chanan Devi. It was claimed that the plot was purchased fraudulently by describing himself to be son of Sh. Anant Ram. The plaintiffs filed replication to the written statement, wherein averments made in written statement were denied and that of plaint were reiterated. On the pleadings of the parties, following issues were framed:- "1. Whether Chanan Devi deceased executed valid 'Wills' dated 12.1.1967 and 21.11.1968 in favour of the plaintiffs in respect of the property in dispute? OPP. 2. Whether Smt. Chanan Devi executed valid 'Will' dated 31.3.1982 in favour of the defendant No. 1 Bal Kishan? OPD 3. Whether the plaintiffs are entitled to the declaration and possession of the property in dispute? OPP 4. Relief." Though in support of 'Will' dated January 12, 1967, the R.S.A. No. 170 of 1991 (O&M) -7- plaintiffs examined the scribe and attesting witnesses to prove the execution of 'Will', but the learned trial Court was pleased to reject the same in view of the suspicious circumstances surrounding the said 'Will'. The suspicious circumstances were that the 'Will' was said to have been scribed by one Kishan Singh, who was not a regular petition writer. The learned trial Court also noticed that in the 'Will', name of Sh. Wazir Chand was shown to be one of the attesting witnesses, but he was not examined. The learned trial Court held that though in the 'Will', the age of Chanan Devi was given to be 53 years, there was hardly any reason to execute the said 'Will' as she was said to have died after 15 years of the said 'Will'. The learned Court also noticed the contention of the learned counsel appearing for the defendant/respondent that adoption of Kamla Devi plaintiff No. 2 was not proved nor it was permissible prior to coming into force the Hindu Succession Act and, therefore, there was hardly any reason to dis-inherit respondent/defendant No. 1, as he was admittedly the adopted son. The learned trial Court also observed that there were material discrepancies in statements of both the attesting witnesses of the 'Will', as Dr. Ram Parkash PW-2 has stated in cross- examination that Sh. Wazir Chand, Advocate, was not present at the time of execution of the 'Will' nor he could tell on whose instance, Kishan Singh scribe recorded the name of Sh. Wazir Chand. Whereas Sarwan Singh PW-3 stated that he reached the house of Smt. Chanan Devi, where Kishan Singh, Wazir Chand and Smt. Chanan Devi were present. The learned trial Court also observed that no reason was given as to why the 'Will' was scribed at house and how the black ink pad was used for the thumb mark. The learned trial Court also noticed that the age given R.S.A. No. 170 of 1991 (O&M) -8- by the witnesses was not correct, which created doubt of their presence. The learned trial Court further noticed that oral evidence brought on record showed that Sh. Anant Ram and Smt. Chanan Devi came to Ludhiana after retirement in the year 1962, and that the construction of house was completed in the year 1965. Defendant No. 1 and his family members were visiting the house of Anant Ram and Chanan Devi whereas it was also admitted that Kuldeep Kumar son of defendant No. 1 was studying at Ludhiana since 1963-68, which dis-approve the factum that there were strained relations between defendant No. 1 and Chanan Devi. It may further be noticed that Khushal Chand had also stated that Kuldeep Kumar son of defendant No. 1 was married by Anant Ram and Chanan Devi and also the marriage of the daughter of defendant No.1 was performed in the disputed house. The learned trial Court also held that the plaintiffs failed to prove the adoption of plaintiff No. 2 as daughter by Anant Ram and Chanan Devi. The learned trial Court also rejected the evidence qua the service rendered by the plaintiffs in support of execution of 'Will' in their favour on the plea that the 'Will' was said to have been executed in the year 1967 whereas the service was shown to have been rendered to her in the year 1982. Thus, the learned trial Court held that the 'Will' Ex. P-2 was surrounded by suspicious circumstances. The learned trial Court also held that the second 'Will', which was alleged to have been lost, was also not valid 'Will', which seems to have been fabricated by the plaintiffs in order to grab the property in dispute. The learned Court observed that N.K. Jain, document expert who appeared as PW-13 stated that the disputed thumb impression in the register of petition writer was of left hand and, R.S.A. No. 170 of 1991 (O&M) -9- therefore, could not be compared because there was no left hand specimen of Chanan Devi available for comparison. The learned Court observed that the plaintiffs failed to produce any other left thumb impression of Chanan Devi to prove the thumb impression in the register of the scribe. The Court also observed that the 'Will; Ex P-1 dated November 21, 1968 though scribed by the petition writer was again said to be attested by Ram Parkash and Sohan Lal. Thus the Court formed an opinion that both these attesting witnesses seem to be convenient witnesses available to plaintiffs. This will was also held to be fabricated. Consequently, issue No. 1 was decided against the plaintiff/appellant. On issue No. 2 though signatures of Chanan Devi were proved to be existing, the said 'Will' was rejected by the learned trial Court by observing that the possibility of fabrication of 'Will' could not be ruled out, as the thumb impression of Chanan Devi appeared at two places which indicated that thumb impressions were obtained on some blank paper for preparing an affidavit or some other document. Issue No. 2 was, thus, decided in favour of the plaintiff/appellants. However, in view of the findings recorded on issue No. 1, issue No. 3 was decided against the plaintiff/appellants by observing that the daughter could not be adopted by Hindu parents in the year 1935, as it could only be done after coming into force of Hindu Succession Act. As a result, the suit filed by the plaintiff/appellants was ordered to be dismissed. The plaintiffs preferred an appeal against the judgment and decree passed by the learned trial Court . R.S.A. No. 170 of 1991 (O&M) -10- The learned lower appellate Court affirmed the finding of the learned trial Court on issue No. 1 and held that Ex. P-1 and P-2 said to have been executed by Smt. Chanan Devi were surrounded by suspicious circumstances, which were not satisfactorily explained. The learned lower appellate Court also affirmed the finding that plaintiff No.2 failed to prove her adoption as daugher. The findings of the learned trial Court were thus, affirmed and the appeal was dismissed. Mr. Amit Rawal, learned counsel appearing on behalf of the appellants raised the following substantial questions of law for consideration: - "1. Whether the judgments and decree passed by the learned Courts below in not believing the 'Wills' dated November 21, 1968 Ex. P-1 and January 12, 1967 Ex. P-2, though proved in accordance with provisions of law, are perverse? 2. Whether the judgments and decree passed by the learned Courts below suffer from mis-reading of oral and documentary evidence on record in holding that Kamla Devi had failed to prove her adoption? 3. Whether the approach of the learned Courts below in holding that the adoption of daughter was not contemplated by Hindu law prior to coming into force the Hindu Succession Act is justified and legal? 4. Whether ignoring of testimony of statements of witnesses as a whole amounts to erroneous finding, thus, not liable to be sustained in law? In support of the substantial questions of law, the learned R.S.A. No. 170 of 1991 (O&M) -11- counsel for the appellants vehemently contended that the due execution of 'Wills' Ex. P-1 and P-2 was proved by adducing legal and convincing evidence, which was in consonance with Section 63 of the Indian Succession Act, and there was nothing unnatural about the transaction and, therefore, the finding recorded by the learned Courts below that it was surrounded by suspicious circumstances is based on mere conjectures and unfounded suspicion and, therefore, the finding recorded by the learned Courts below deserves to be set aside. In support of this contention, the learned counsel for the appellant placed reliance on the judgment of the Hon'ble Supreme Court in Madhukar D. Shende Vs. Tarabai Shende 2002(2) Supreme Court Cases 85. However, on consideration of matter, I find no force in the contentions raised by the learned counsel for the appellants. The learned Courts below have held the 'Wills' Ex. P-1 and P-2 surrounded by suspicious circumstances by taking into consideration cummulative effect of different circumstances appearing qua the execution of the 'Will' which remained unexplained. Therefore, it cannot be said that the finding of the learned Courts below is based on mere conjectures and unfounded suspicion to attract the law laid down by the Hon'ble Supreme Court in Madhukar D. Shende Vs. Tarabai Shende (supra). The learned counsel for the appellants by placing reliance on the judgment of the Hon'ble Supreme Court in Major Singh Vs. Rattan Singh (dead) by LRs and others, 1997(3) Supreme Court Cases 546 contended that it is always open to the High Court to interfere with the concurrent finding, in case, it is found that the rejection of evidence of R.S.A. No. 170 of 1991 (O&M) -12- attestator was not correct, and further, in case, it is held that the doubt of execution of 'Will' was not sustainable in the eye of law. There can be no dispute to this proposition of law. The High Court can always interfere even with the concurrent finding of fact, in case, it is proved that the finding recorded by the learned Courts below is perverse or outcome of mis-reading of evidence, or where the learned Courts below rejected the admissible evidence and took into consideration inadmissible evidence to record a concurrent finding. However, this contention cannot be said to have arisen in the present case, as the learned Courts below on appreciation of evidence have recorded a finding of fact holding that the 'Wilsl' were surrounded by suspicious circumstances. The finding recorded cannot be said to be incorrect. The learned counsel thereafter by placing reliance on the judgment of the Hon'ble Supreme Court in Meenakshiammal (dead) through LRs Vs. Chandrasekaran and another, 2005(1) Supreme Court Cases 280 contended that once due execution of 'Will' was proved by the plaintiff/appellants by proving signatures of the attestator and the nature of suspicion was not such which was inherent in transaction, could not be taken into consideration merely on the basis of conflicting testimony of the attesting witnesses. The contention of the learned counsel for the appellants was that the suspicious circumstances cannot be defined precisely nor enumerated exhaustively and must depend on the facts of each case. The contention of the learned counsel for the appellant, therefore, was that the suspicious circumstances taken into consideration by the learned R.S.A. No. 170 of 1991 (O&M) -13- Courts below could not be a ground to reject the 'Will'. However, this contention of the learned counsel for the appellants cannot be accepted. It is well settled law that one or other suspicious circumstances may not justify the rejection of the 'Will', but the Courts have to see cummulative effect of suspicious circumstances. In the present case, it may be noticed that the cummulative effect of the suspicious circumstances leaves no manner of doubt that the 'Will' was surrounded by suspicious circumstances and, therefore, was rightly rejected. The very basis of claim of execution of 'Will' was lost, as it was proved on record that the relationship between Chanan Devi and respondent/defendant No. 1 was not strained and, therefore, there was hardly any reason to dis-inherit the adopted son, who had in fact gifted the plot on which house in dispute was built. The learned counsel for the appellant thereafter placed reliance on the judgment of the Hon'ble Supreme Court in Sridevi and others Vs. Jayaraja Shetty and others 2005(2) Supreme Court Cases 784 to contend that the onus to prove that the 'Will' was surrounded by suspicious circumstances was on the respondent/defendant No. 1 and, therefore, the judgment cannot be sustained. However, this contention is mis-conceived, as the Hon'ble Supreme Court in Sridevi and others Vs. Jayaraja Shetty and others (supra) has been pleased to lay down that onus to explain suspicious circumstnaces, if any, is also on the propounder of the 'Will'. In the present case, the 'Will' has been rejected as the plaintiff/appellants failed to dispel the suspicious circumstances. The learned counsel appearing on behalf of respondent No. 1, R.S.A. No. 170 of 1991 (O&M) -14- however, contended that in the present case, the finding of fact has been recroded on appreciation of evidence and, therefore, the appeal raises no substantial question of law for consideration by this Court, as this Court cannot reappraise the evidence brought on record, and record a different conclusion than the one recorded by the learned Courts below on the question of fact. As already observed above, there is a force in the contention raised by the learned counsel for respondent No. 1. In the present case, concurrent finding of fact has been recorded that the 'Wills' Ex. P-1 and P-2 were surrounded by suspicious circumstances and have rightly been rejected. The finding cannot be said to be outcome of mis-reading of evidence or not capable of being arived at on the basis of oral and documentary evidence led on record. The learned counsel for the appellants contended that the approach of the learned Courts below in holding, that adoption of daughter was not contemplated by Hindu law prior to coming into force of the Hindu Succession Act, could not be sustained in law, as the adoption was duly proved by Vidya Wati appearing as PW-1, in terms of Section 32(6) of the Evidence Act. However, this plea deserves to be rejected. The learned Courts below have concurrently held that before coming into force of the Hindu Succession Act, adoption of female by Hindu was not permissible. The learned Courts below have also recorded a concurrent finding of fact that plaintiff No. 2 failed to prove her adoption and, thus, held her not to be adopted daughter. The finding is again based on appreciation of evidence on record. R.S.A. No. 170 of 1991 (O&M) -15- The substantial questions of law, thus, are answered against the appellant/plaintiffs and in favour of the defendant/respondent. Resultantly, this appeal is ordered to be dismissed, but with no order as to costs. (Vinod K. Sharma) Judge March 21, 2009