Regular Second Appeal No.730 of 1981 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.730 of 1981 Date of Order: 30th May, 2009 Hakam Singh (dead) through his legal representatives and others ...Appellants Versus Kehar Singh (dead) through his legal representatives and others ...Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. M.L.Sarin, Senior Advocate with Mr. Kabir Sarin, Advocate,for the appellants. Mr. S.D.Bansal, Advocate,for L.R's of appellant no.2, 3 and 4 Mr.J.S.Wasu, Senior Advocate with Mr. Gur Rattan Pal Singh,Advocate and Mr. Gagandeep Singh Wasu, Advocate for the legal representatives of respondent no.1 RAJIVE BHALLA, J By way of this second appeal the appellants impugn judgments and decrees dated 24.12.1979 and 04.02.1981, passed by the Sub Judge Ist class, Kharar and the District Judge, Rupnagar, dismissing their suit and their appeal. The plaintiff-appellants filed a suit for possession of 276 kanals 3 marlas of land and for redemption of 40 kanals 18 marlas of land. The appellants alleged that the suit land was owned by Harjalla, resident of village Patran, Tehsil Kharar. After his demise Ms. Attri inherited the suit land as owner in possession. She mortgaged 40 kanals 18 marlas of the suit land with the respondents for Rs.800/- in the year 1946. The appellants who are the progeny of Attar Singh brother of Ms. Attri served and looked after her, during her life time. She, therefore, executed a will dated 25.01.1967, bequeathing her entire estate to the appellants. After her demise, on 30th April 1976, the appellants have become owners of the suit land on the basis of this will. A mutation of inheritance has been Regular Second Appeal No.730 of 1981 2 sanctioned, in their favour but the defendants do not accept the will and in turn assert their title. It was further alleged that even if the will is ignored, the appellants are entitled to inherit the estate of Ms. Attri being her closest surviving heirs. In their joint written statement, the defendant/respondents controverted the averments in the plaint and emphatically denied the execution of the alleged will. It was pleaded that Ms. Attri who was 90 years old could not have executed the will as she suffered from multiple ailments and her mental faculties were seriously impaired. The respondents also put forth their claim as owners of the suit land by alleging that they are agnates of Harjalla, deceased husband of Ms. Attri and therefore entitled to succeed to her estate, as they both died issueless. It was also averred that they were in possession of the suit land during the life time of Ms. Attri as tenants and continue in possession, after her demise, as owners. It was also asserted that the right to redeem the mortgaged property has become time barred. The appellants filed a replication controverting the averments in the written statement and reiterating those in the plaint. On the basis of the pleadings the trial court framed the following issues. “1. Whether the plaintiffs are the sons of Attra real brother of Attri deceased? OPP 2. Whether Smt. Attri has executed a Will dated 25.01.1967, in her sound disposing mind in favour of the plaintiffs in lieu of their services? OPP 3. Whether the plaintiffs have a right to redeem the suit land from defendants No.2 to 9 on payment of Rs.880 as alleged in para No.8 of the plaint?OPP 4. Whether this suit for redemption of land alleged in para no.8 is within time?OPP Regular Second Appeal No.730 of 1981 3 5. Whether the defendants No.1 to 9 are agnates of husband of Smt. Attri and are better heirs than that of the plaintiff to succeed to the estate of said Attri?OPD 6. Whether the defendants No.2 to 6 are in possession of the suit land as tenants from the life time of Attri and entitle to possession of suit land except in due course of law and are not entitled to decree for possession in this suit ?OPD 6A. Whether the succession in the present case is governed under clause (1) of section 15 of the Hindu Succession Act? OPP 7. Relief.” After considering the pleadings, the evidence adduced and the arguments addressed, the Sub Judge Ist Class, Kharar, dismissed the suit The will dated 25.01.1967 was rejected as it was held that the appellants had failed to dispel the numerous suspicious circumstances surrounding its execution. The right of the respondents to inherit the suit land as agnates of Harjalla deceased husband of Ms. Attri was upheld. For this conclusion, the trial court placed reliance upon pedigree tables Ex. D-7, Ex. D-8 ,Ex. D-9 and Ex. D-14.In order to repel an objection, raised by the appellants, that the unsigned pedigree table Ex.D-14 could not be read into evidence, the trial court held that as it was appended with the signed list of documents Ex.D-10, filed by Sunder, father of Kehar Singh, respondent no.1 and Dalel Singh, father of Harjalla, husband of Ms. Attri in a prior civil suit instituted by them, it would be deemed to be their statement and therefore relevant under Section 32 (5) and (6) of the Indian Evidence Act, 1872 . It was also held that the contents of Ex D-14 were corroborated by the statement of Ms. Attri Ex.D-19 in another suit,to the effect that Dalel Singh had received half the estate of Nando widow of their collateral Regular Second Appeal No.730 of 1981 4 named Khushali by virtue of mutation Ex.D-6. . Aggrieved by the aforementioned judgment and decree, the appellants filed an appeal. The District Judge, Rupnagar dismissed the appeal and affirmed the findings recorded by the trial court. The learned District Judge rejected the will as being surrounded by unexplained suspicious circumstances. As regards the question of inheritance, it was held that the pedigree table Ex.D-14 establishes that the respondents are agnates of Harjalla, husband of Ms Attri and are, therefore, preferential heirs to her estate. It was also held that though the pedigree table does not bear the signatures of its author but as the question is one of its relevance, it is relevant. The learned District Judge also held that the respondents were tenants in possession prior to the demise of Ms. Attri. Counsel for the appellants submits that the courts below have committed fundamental errors of law while discarding the will. It is argued that the discrepancies and the so called suspicious circumstances in the execution of the will are natural discrepancies and therefore insufficient to discard the will. The appellants have examined the scribe who penned the will, have produced two attesting witnesses as per the requirement of law and the mere fact that the will is in English or that the thumb impressions may be smudged or that all the attesting witnesses have not deposed, is insufficient to discard the will that has been proved in accordance with law. The next argument, the more seriously contested of the two, is directed against the concurrent findings, recorded by the courts below that as the respondents are agnates of Harjalla, husband of Ms. Attri they are entitled to succeed to the suit land, in preference to the appellants. It is argued that the evidence on record does not lend support, whether in fact or in law, to the aforementioned conclusion. The respondents have failed to adduce any evidence in support of their plea that they are agnates of Regular Second Appeal No.730 of 1981 5 Harjalla. The evidence adduced does not connect their lineage to Harjalla through, a common male ancestor. Ex. D-14, relied by the courts below to hold that the respondents are agnates of Harjalla, is of doubtful origin and authenticity as it does not bear the signature or the name of its author. Despite these legal infirmities, both the trial court and the first appellate court have placed reliance upon Ex D.-14. It is further submitted that the courts below could not have invoked the provisions of Section 32 (5) & (6) of the Indian Evidence Act, 1872, to hold that the unsigned pedigree table Ex.D-14 was relevant to draw an inference of relationship. In the absence of any proof as to the identity of its author, the courts below should have rejected Ex. D-14.Instead the courts below, have resorted to a strange subterfuge to hold that Ex. D-14 is relevant. They have held that as Ex. D-14 was attached to a signed list of documents Ex.D-10, filed in a suit filed by Sunder and Dalel Singh, it would be deemed to be their statement. In the absence of any evidence as to the author of the pedigree table the courts below could not have resorted to this circuitous process of reasoning to confer legitimacy upon Ex D.-14. It is, therefore, prayed that the appeal be allowed and the impugned judgments be set aside. Counsel for the respondents submits that no question of law much less a substantial question of law arises for consideration. The courts below have returned findings of fact, which do not suffer from any error much less an error of law . The appellants have failed to frame or urge any substantial question of law. It is further urged that the acceptance or rejection of a will is a pure question of fact that cannot be reappraised in second appeal. The suspicious circumstances enumerated by the courts below, while discarding the will, are sufficient to hold, as concurrently held by the courts below, that the alleged will is a fabricated document that does not reflect the true will of the deceased. It is submitted that the will is scribed in Regular Second Appeal No.730 of 1981 6 English whereas the testator was illiterate. The thumb impressions are clearly smudged. The scribe failed to produce the original register. Out of the five persons who witnessed the execution of the will only two were produced .Even otherwise as the question of the execution of a will is a pure question of fact, the impugned findings do not call for interference. With regard to the argument that the courts below could not have relied upon the unsigned pedigree table Ex D-14, it is submitted that law does not require a pedigree table or a statement reflecting relationship to be signed. Statements on tomb stones, family portraits and oral depositions have always been held to be relevant evidence of relationship. The courts below were, therefore, justified in placing reliance upon the pedigree table Ex.D-14, read along with the list of documents Ex.D-10, to hold in favour of the respondents. It is further submitted that a certified copy of the pedigree table Ex.D-14 was led into evidence from the record of the civil suit filed by Sunder and Dalel Singh, ancestors of the present respondents. In this civil suit titled as Sunder Vs. Dalel Singh, the pedigree table was appended with the signed list of documents Ex. D-10. The courts below were therefore right in holding that Ex.D-14 would be deemed to be the statement of Sunder and Dalel. Furthermore Ex D.-14 is more than 40 years old and is entitled to a legal presumption as provided in Section 90 of the Indian Evidence Act as its authenticity and relevance is beyond dispute, it was rightly relied by the courts below to hold that the respondents are agnates of Harjalla and, therefore, entitled to succeed to the suit property. It is further submitted that a pedigree table is a part of the record of rights prepared under Sections 31(2) and 33(2) of the Punjab Land Revenue Act and are therefore relevant. It is, therefore, prayed, that the appeal be dismissed. I have heard counsel for the parties and perused the impugned judgments. Regular Second Appeal No.730 of 1981 7 Counsel for the appellants has filed amended grounds of appeal raising eight questions, stated to be substantial questions of law. The all questions framed by counsel for the appellant read as follows : "i) Whether the finding of the courts below disbelieving the will Ex. P-1 are perverse and manifestly illegal ? ii) Whether the courts below have adopted a hypertechnical and hypersuspicious approach in disbelieving the will, which was otherwise found to be a natural bequest ? iii) Whether anything which is not a requirement of the law, be a ground for suspicion for disbelieving the will ? iv) Whether the finding of the courts below that defendant-respondents are agnates of Harjalla, is perverse and manifestly illegal, being based on no admissible evidence ? v) Whether the courts have exceeded their jurisdiction in believing an unsigned and unproved pedigree table, which has not been proved on the record, to hold that the defendant-respondents were agnates of Harjalla ? vi) Whether, in holding that defendant-respondents were agnates of Harjalla, the courts have exceeded its jurisdiction in placing reliance on a pedigree table, when they have found that there is a confusion as to the most material part of the pedigree table, inter alia the identity of the alleged common ancestor ? Vii) Whether the courts have failed to exercise their jurisdiction in overlooking very material circumstances which disprove the alleged agnacy of the defendant- respondents, including interalia the mortgage and Regular Second Appeal No.730 of 1981 8 alleged tenancy of the suit land ? Viii) Whether the finding of the courts below that defendant-respondents were tenants of Attri is manifestly illegal and perverse ?" Before proceeding to record any opinion it would be appropriate to refer to the jurisdictional constraints that circumscribe the jurisdiction of a court hearing a second appeal. Section 100 of the Code of Civil Procedure, confines consideration to substantial questions of law as distinguished from mere questions of law or of fact. Findings of fact, concurrent or otherwise that are based upon a judicious appreciation of pleadings and evidence, can not be reversed in second appeal, except if they disclose a substantial error of law arising from a perversity in the process of reasoning, a misreading of material evidence, a failure to consider relevant pleadings and evidence or such other circumstances as may demonstrably establish that the errors committed by the courts below raise a substantial question of law. It would, require emphasis that, in civil proceedings, appreciation of evidence is based upon the preponderance of probabilities. More often than not, on the same set of facts, two equally plausible views may be possible. Where the courts below have adopted one of these plausible views, interference in second appeal, would be barred, even if the other view appears to be more plausible. A brief factual narrative would be appropriate. Harjalla husband of Smt. Attri died issueless. Smt. Attri inherited his estate in its entirety. The appellants allege that they have succeeded to her estate on the basis of a Will Ex. P-1 dated 25.01.1967, whereas the respondents claim that they have inherited the estate being agnates of Harjalla, husband of Smt. Attri. The courts below have rejected the Will Ex.P1 and on the basis of the pedigree tables Ex.D7, Ex.D8, Ex.D9, and Ex. D-14 Regular Second Appeal No.730 of 1981 9 have held that as the respondents are agnates of Harjalla, husband of Smt. Attri, and therefore entitled to succeed to her estate, as she passed away issueless. Questions no.1 to 3 relate to the rejection of the will Ex. P-1, whereas questions no.4 to 8 relate to the findings recorded by the courts below that the respondents are agnates of Harjalla, husband of Attri deceased and other ancillary matters. By way of the first three questions, the appellants impugn the concurrent findings recorded by the courts below rejecting the execution of the will Ex .P-1. The arguments canvassed by counsel for the appellants, in my considered opinion, do not raise any question of law much less a substantial question of law. The acceptance or rejection of evidence adduced in support of the due execution of a will , is a question of fact and till such time as the findings recorded by the courts below do not suffer from an error that raises a substantial questions of law, these findings cannot be reappraised in second appeal. The evidence adduced by the appellants, to prove the execution of the will has been rejected by the courts,as it is surrounded by suspicious circumstances namely:- (a) the will is executed in English whereas Ms. Attri was admittedly illiterate (b) the thumb impressions are smudged (c) the words "RTI of Ms. Attri" appearing on the first page of the Will are far below her alleged thumb impression,(d)only one of the five marginal witnesses belongs to village Hallomajra . (e) PW3, the marginal witness who has deposed in favour of the execution of the will has admitted that he had raised loans from the appellants (f) no respectable person like a lambardar was associated with the execution of the will (g) the scribe Baldev Singh failed to produce his register (h) in his deposition before the revenue authorities the scribe produced the register which was found to contain blank pages and blank serial numbers. In addition, the courts below have commented adversely Regular Second Appeal No.730 of 1981 10 upon the participation of the beneficiaries in the execution of the will. The suspicious circumstances enumerated by the courts below, cannot be faulted, whether in fact or in law. In the absence of any error on the part of the courts below, in rejecting the Will no substantial question of law arises for adjudication. It would, therefore, have to be held that the courts below rightly held that the appellants have failed to prove that the will dated 25.01.1967 was executed by Ms. Attri. The next substantial questions of law namely, questions no.4 to 8 relate to the reliance by the courts below upon the pedigree tables, particularly the unsigned pedigree table, Ex.D-14 to hold that the respondents are agnates of Harjalla . The fourth ,fifth and sixth questions relate to the evidentiary value of pedigree tables, particularly the unsigned pedigree table Ex.D-14. Any answer to these questions would, necessarily require appraisal of the unsigned pedigree table and the provisions of Sections 32(5) (6) and 50 of the Indian Evidence Act, so as to ascertain whether the courts below committed any legal error in holding that the unsigned pedigree table is “relevant” and when read with the other evidence establishes that the respondents are agnates of Harjalla. The other questions are ancillary and would, therefore, be answered along with these questions. The parties to the present proceedings claim ownership to the estate left behind by Smt. Attri. It is not denied that in case the respondents succeed in establishing that they are agnates of Harjalla, husband of Attri, they would succeed to her estate, to the exclusion of the appellants. If however, they fail to establish their status as agnates, the estate would devolve upon the appellants. The courts below have held that the pedigree tables Ex. D7, Ex. D8 and Ex.D9 read along with the unsigned pedigree table Ex-D 14, establish that the respondents are agnates of Harjalla husband of Attri deceased. In addition, the courts below have placed Regular Second Appeal No.730 of 1981 11 reliance upon statements made by other relatives, including Smt.Attri, in earlier suits, to corroborate the pedigree table. The appellants on the other hand, allege that the respondents have failed to prove that they are agnates of Harjalla, as they have failed to trace their lineage to Harjalla, through a common male ancestor. It is also canvassed that the pedigree table Ex.D-14 is unsigned and even otherwise does not clearly establish the identity of the common ancestor. It is urged that as per Ex. D- 14 the common ancestor is Sahai father of Jai Ram and not Jai Ram father of Ram Sahai as is sought to be established by the respondents. Ex. D- 14 therefore should have been ruled out of consideration. The bone of contention between the parties is the pedigree table Ex.D-14, which is admittedly unsigned. The argument that this unsigned pedigree table should be excluded from consideration as its author and origin are unknown was rejected by the trial court and the first appellate court by holding that Ex.D-14, though unsigned would be deemed to be the statement of Sunder father of respondent No.1 and Dalel Singh, father of Harjalla as it was filed by them along with a signed list of documents Ex. D-10,in a prior suit and is, therefore relevant to establish that the respondents are agnates of Harjalla . An appraisal of the findings recorded by the courts below discloses that they have relied upon the provisions of Section 32 (5) & (6) and Section 50 of the Evidence Act. It would therefore be necessary to appraise these provisions, peruse documents Ex-D14 and Ex.D-10 and to consider whether the reasons assigned by the courts below while holding that Ex. D-14 is relevant are legal and valid. Section 32 (5) and (6) of the Evidence Act reads as follows:- Section 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.- Statements, written or verbal, of relevant facts made by a Regular Second Appeal No.730 of 1981 12 person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay of expense which under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:- (1)xxxxxxx (2) xxxxxx (3) xxxxxx (4) xxxxxxx (5) or relates to existence of relationship.- When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. (6)or is made in Will or deed relating to family affairs.- when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any Will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised." Section 32 (5) & (6) enumerate the circumstances in which Regular Second Appeal No.730 of 1981 13 statements as to relationship, whether written or verbal, made by a person who is dead or cannot be found or has become incapable of giving evidence, are relevant. Section 32(5) postulates that such a statement would be relevant, if the person making the statement had special means of knowledge and provided the statement was made before the question in dispute arose. Section 32(6) extends the inference of relevance to statements made in a will or a deed relating to family affairs of the family to which the deceased belonged or to any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are made. In State of Bihar v. Radha Krishna Singh, 1983 Supreme Court 684, while considering the provisions of Sections 32 (5) and (6), the Hon'ble Supreme Court set down the principles that govern the applicability of Section 32(5) & (6) and the tests to be applied to statements or documents relating to genealogies and held as under:- "The principles governing such cases may be summariszed thus :(1) Genealogies admitted or proved to be old and relied on in previous cases are doubtless relevant and in some cases may even be conclusive of the facts proved but there are several considerations which must be kept in mind by the courts before accepting or replying on the genealogies. (a) Source of the genealogy and its dependability. (b) Admissibility of the genealogy under the Evidence Act. (c) A proper use of the