RSA No. 2571 of 2008 1 RSA No. 2572 of 2008 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2571 of 2008 Date of Decision: 08.01.2010 1. Baljit Singh son of Sh. Bulland Singh, r/o village Bara Pind, Post Office Bharat Garh, Tehsil and District Ropar, Punjab. 2. Avtar Kaur, d/o Sh. Bulland Singh, now wife of Sh. Pal Singh, r/o village Alipur, Tehsil and District Ropar, Punjab. ... Appellants Versus Mohinder Kaur, wife of Sh. Jagga Singh, r/o village Bara Pind, Post Office Bharat Garh, Tehsil and District Ropar, Punjab. ...Respondent R.S.A. No. 2572 of 2008 Date of Decision: 08.01.2010 1. Baljit Singh son of Sh. Bulland Singh, r/o village Bara Pind, Post Office Bharat Garh, Tehsil and District Ropar, Punjab. 2. Avtar Kaur, d/o Sh. Bulland Singh, now wife of Sh. Pal Singh, r/o village Alipur, Tehsil and District Ropar, Punjab. ... Appellants Versus Mohinder Kaur, wife of Sh. Jagga Singh, r/o village Bara Pind, Post Office Bharat Garh, Tehsil and District Ropar, Punjab. ...Respondent RSA No. 2571 of 2008 2 RSA No. 2572 of 2008 CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Vijay Lath, Advocate, for the appellants, in both the appeals. Mr. Arun Palli, Senior Advocate, with Mr. Vishal Garg, Advocate, for the respondent. SHAM SUNDER, J. * * * * This judgement shall dispose of RSA No. 2571 of 2008, and, RSA No. 2572 of 2008, filed by Baljit Singh and Avtar Kaur, appellants, against the judgement and decree dated 23.08.07, rendered by the Court of District Judge, Rupnagar, vide which, it accepted the appeals of Mohinder Kaur, against the judgement and decree dated 21.03.05, rendered by the Court of Additional Civil Judge (Senior Division), Ropar, and dismissed the suit for declaration, filed by Baljit Singh and Avtar Kaur, on the one hand, and, on the other hand, decreed the suit for recovery, filed by Mohinder Kaur. 2. The facts, in brief of Civil Suit No. 659/RT-370, are that, Bulland Singh, father of the plaintiffs (appellants), and defendant No. 1 (Harjap Singh), was the owner of the land, in dispute. He died on 11.04.91. It was stated that plaintiff No. 2, was married, by her father, and she was given sufficient dowry, at the time of her marriage. Defendant No. 1, was addicted to vices, and, as such, he was living RSA No. 2571 of 2008 3 RSA No. 2572 of 2008 separately, from his father. It was further stated that plaintiff No. 1, served his father throughout his life, as a result whereof, being satisfied with his services, he executed a valid Will, in his favour, on 14.02.91. It was further stated that defendant No. 1, was only entitled to 1/3 share, in the crop. It was further stated that defendant No. 1, got mutation No. 944, sanctioned, in his favour, in respect of 1/3rd share of the land, in dispute, which was illegal, null and void. It was further stated that the sale deed, executed by defendant No. 1 (Harjap Singh), in favour of defendant No. 2 (Mohinder Kaur), in respect of the land, in dispute, was also illegal, null and void. The defendants, were many a time, asked to treat the sale deed, as illegal, null and void, but to no avail. Ultimately, a suit for declaration, was filed. 3. Defendant No. 1, put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was pleaded that the suit was not maintainable. It was further pleaded that the plaintiffs, had not come to the Court with clean hands. It was stated that the parties, arrived at a compromise, on 14.11.91, with regard to the inheritance of the estate of Bulland Singh, as a result whereof, 1/3rd share of the land, in dispute, was given, to defendant No. 1, and, as such, he was the owner in possession thereof. It was further stated that defendant No. 1, being the owner of the land, in dispute, to the extent of 1/3rd share, sold the same, in favour of defendant No. 2, vide registered sale deed dated 08.09.94, for a sale consideration of Rs. 1,75,000/-. It was further stated that the Will, set up by the RSA No. 2571 of 2008 4 RSA No. 2572 of 2008 plaintiff, was a forged and fabricated document. It was further stated that when the compromise dated 14.11.91, was arrived at, between the parties, the Will dated 14.02.91, was ignored. It was admitted that plaintiff No. 2, was married and she was given sufficient dowry. It was further stated defendant No. 2, inherited 1/3rd share, in the land, in dispute, after the death of his father. It was denied that defendant No. 1, was addicted to vices. The remaining averments, were denied, being wrong. 4. Defendant No. 2 (respondent), filed a separate written statement, pleading therein, that the suit of the plaintiffs, was not maintainable, as she was the bonafide purchaser of the land, in dispute, for a valuable consideration, in good faith, and without notice of any defect, in the title of Harjap Singh her vendor. It was stated that, before purchasing the land, in dispute, she made enquiries, and inspected the revenue record, wherefrom, she came to know, that Harjap Singh son of Bulland Singh, was the owner of the land, in dispute, to the extent of 1/3rd share, and the mutation, in respect thereof, also stood sanctioned, in his favour. It was further stated that, after making bonafide enquiries, she purchased the land, measuring 26 kanals 18 marlas, from him, for a valuable consideration of Rs. 1,75,000/-, vide registered sale deed dated 08.04.94. It was further stated that the Will dated 14.02.91, was a false and fictitious document. The remaining averments, were denied, being wrong. 5. On the pleadings of the parties, the following issues were RSA No. 2571 of 2008 5 RSA No. 2572 of 2008 struck:- (i) Whether Bulland Singh executed a valid Will dated 14.02.91, in favour of the plaintiff No. 1? OPP (ii) Whether the Will in question is forged and fabricated? OPD (iii) Whether the plaintiffs are entitled to the declaration prayed for? OPP (iv) Whether the plaintiffs are entitled to the injunction prayed for? OPP (v) Whether the suit is not maintainable? OPD (vi) Whether the parties effected compromise vide compromise deed dated 14.11.91? If so, its effect? (vii) Whether defendant No. 2 is bonafide purchaser for consideration of the suit land from defendant No. 1? OPD (viii)Whether the plaintiffs are estopped from filing the suit by their acts and conduct? OPD (ix) Relief. 6. In Civil Suit No. 225 of 09.10.97, titled as 'Mohinder Kaur Vs. Baljit Singh and others', it was stated that, the land, in dispute, was originally owned by Bulland Singh son of Narain Singh (since deceased). It was further stated that the defendants, arrived at a compromise, on 14.11.91, as a result whereof, mutation of inheritance of the estate of Bulland Singh, was sanctioned, in favour of Baljit Singh and Avtar Kaur, to the extent of 2/3rd share, and, Harjap Singh, to the extent of 1/3rd share. It was further stated that the plaintiff, RSA No. 2571 of 2008 6 RSA No. 2572 of 2008 purchased the land, in dispute, from Harjap Singh, defendant, for a valuable consideration of Rs. 1,75,000/-, vide registered sale deed dated 08.09.94. It was further stated that the plaintiff, was the bonafide purchaser of the land, in dispute, for a valuable consideration, in good faith, and without notice. It was further stated that, before purchasing the land, in dispute, the plaintiff, made bonafide enquiries, and, as such, came to know, that Harjap Singh, was the exclusive owner thereof. It was further stated that defendants Baljit Singh and Avtar Kaur, were in joint possession of the land, in dispute, and were, thus, enjoying the fruits thereof, depriving the plaintiff, from the same, being its bonafide purchaser. It was further stated that the average income of the produce per Killa, was Rs. 5,000/-, per year, but defendants No. 1 and 2, were depriving the plaintiff, therefrom. It was further stated that, though, the share of the income of the plaintiff, came to be Rs. 17,000/- per year, but, she restricted her claim, to the sum of Rs. 6,000/- per year only. The defendants, were many a time, asked to pay the mesne -profits, for the use and occupation of the land, in dispute, purchased by the plaintiff, but to no avail. Ultimately, a suit for recovery, was filed. 7. Defendants No. 1 and 2 (Baljit Singh and Avtar Kaur), put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the plaintiff, had no locus-standi, to file the suit. It was further pleaded that the suit was not maintainable, as after the institution of the same, the parties arrived at a compromise. It was stated that defendants No. 1 and RSA No. 2571 of 2008 7 RSA No. 2572 of 2008 2, inherited the land of Bulland Singh. It was further stated that defendant No. 3, was only entitled to 1/3rd share, in the crop, but, he got sanctioned the mutation fraudulently, in his favour, in respect of the land, in dispute, to the extent of 1/3rd share. It was further stated that the sale deed, produced by the plaintiff, was illegal, null and void. It was further stated that the plaintiff, had no right to claim the amount of Rs. 18,000/-. 8. Defendant No. 3 (Harjap Singh), filed a separate written statement, stating therein, that the mutation, in respect of the inheritance of the estate of Bulland Singh, to the extent of 1/3rd share, was sanctioned, in his favour. It was further stated that, thereafter, defendant No. 3, sold the same, to the plaintiff, vide registered sale deed dated 08.09.94. It was further stated that defendants No. 1 and 2, were in illegal possession of the land, in dispute. It was further stated that, since defendant No. 3, was now not in possession of the land, in dispute, as such, he was not liable to pay any damages, to the plaintiff. The remaining averments, were denied, being wrong. 9. On the pleadings of the parties, the following issues were struck:- (i) Whether on the basis of compromise dated 14.11.91, the mutation of inheritance of Bulland Singh was sanctioned? If so, its effect? OPP (1A)Whether the plaintiff has no locus-standi to file the present suit? OPD (ii) Whether the plaintiff purchased the land RSA No. 2571 of 2008 8 RSA No. 2572 of 2008 in question from Harjap Singh, vide registered sale deed dated 08.09.94? If so, its effect? OPP (iii) Whether the plaintiff is bonafide purchaser for consideration without notice? OPP (iv) Whether the plaintiff is entitled to recover the amount of Rs. 18,000/- as prayed for? OPP (v) Whether the parties have effected compromise in writing on 09.09.98? If so, its effect? OPD (vi) Whether suit is liable to be stayed under Section 10 CPC and under Section 153 CPC? OPD (vii) Relief. 10. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed Civil Suit No. 659/RT-370, filed by Baljit Singh, and, Avtar Kaur (plaintiffs therein), and dismissed Civil Suit No. 225 of 09.10.97, filed by Mohinder Kaur (plaintiff therein). 11. Feeling aggrieved, two appeals, were preferred by Mohinder Kaur (appellant therein), which were accepted, by the Court of District Judge, Rupnagar, vide judgement and decree dated 23.08.07. 12. Feeling dissatisfied, the instant Regular Second Appeals, have been filed by the appellants. 13. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. RSA No. 2571 of 2008 9 RSA No. 2572 of 2008 14. The following substantial questions of law arise, in these appeals, for the determination of this Court:- (i) Whether the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, that the execution, legality and validity of the Will dated 14.02.91, set up by Baljit Singh was not proved? (ii) Whether the first Appellate Court, recorded perverse findings, in holding, that compromise dated 14.11.91, arrived at between the plaintiffs and Harjap Singh, in respect of the inheritance of the estate of Bulland Singh, on the basis whereof, mutation was sanctioned, was legal and valid? (iii) Whether the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, that Mohinder Kaur, was the bonafide purchaser of the suit land, measuring 26 kanals 18 marlas, from Harjap Singh (since deceased), on the basis of the registered sale deed dated 08.09.94 and as such entitled to the mesne profits? 15. The Counsel for the appellants, submitted that the execution, legality and validity of the Will dated 14.02.91, by Buland Singh, in favour of Baljit Singh, was proved. He further submitted that the first Appellate Court, discarded the same, without any rhyme or reason. He further submitted that, even the compromise, aforesaid, was not a legal and valid document, but the first Appellate Court, was wrong, in acting upon the same. He further submitted that Mohinder RSA No. 2571 of 2008 10 RSA No. 2572 of 2008 Kaur, was not the bonafide purchaser of the land, in dispute. He further submitted that the judgement and decree of the first Appellate Court, therefore, being illegal, were liable to be set aside. 16. On the other hand, the Counsel for the respondent, submitted that the first Appellate Court, was right, in coming to the conclusion, that the execution, legality and validity of the Will aforesaid, was not proved. He further submitted that, the compromise, was admitted, by the parties, and the same, was, thus, rightly held to be legal and valid. He further submitted that the judgement and decree of the first Appellate Court, being legal and valid, were liable to be upheld. 17. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeals are liable 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 first Appellate Court, even 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 RSA No. 2571 of 2008 11 RSA No. 2572 of 2008 the jurisdiction of the High Court, in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. It is settled principle of law, that for proving the execution of a Will, at least one attesting witness, must be examined, if he is alive, and not beyond the reach of the Court. Baljit Singh, in order to prove the execution of the Will, produced Joginder Singh, an attesting witness thereof. During the course of his cross-examination, Joginder Singh, stated that, he had tendered the affidavit by way of his examination-in-chief, but he did not remember, as to how many days, had passed, when this affidavit, was prepared. He also stated, during the course of his cross-examination, that the affidavit, was got typed. He further stated, during the course of his cross-examination, that the affidavit, was not got attested. He further stated, during the course of his cross-examination, that his eye-sight, was weak, but he could read Punjabi. He further stated that two lines, were written in the affidavit, with hand, from mark A to mark A1. He further stated, during the course of his cross-examination, that he did not write these lines, nor did he sign the same. He further stated, during the course of his cross- examination, that he did not know, as to what was written from mark A to mark A1. He also stated, during the course of his cross- examination, that he did not know, as to who got prepared his affidavit of examination-in-chief. He further stated that Baljit Singh, was with him, when the said affidavit, was prepared. It is, no doubt, true that, Joginder Singh, at the relevant time, was aged about 83 years. It is also RSA No. 2571 of 2008 12 RSA No. 2572 of 2008 equally true that, it is very difficult for a witness, to remember the minute details, after a long time of the execution of a document. At the same time, the fact, cannot be lost sight of, that the Will speaks from the death of a person, and the executant thereof, cannot be called upon, to prove the same. In such a situation, it becomes the bounden duty of the propounder, to prove the execution of the Will, by leading cogent and convincing evidence. Since Joginder Singh, in clear-cut terms, stated that, he did not know, as to who prepared the affidavit of his examination-in-chief, it could certainly be said, that he did not know, as to what was written therein. If somebody got typed his affidavit, incorporating therein, the mode and manner, in which, the Will was allegedly executed, that could not be said to be sufficient. Such an affidavit, cannot be said to be the affidavit of Joginder Singh. Had the Will been executed, in his presence, by the testator, he would have certainly stated, that whatever, was stated, in the affidavit, was correct, and that, it was typed, on his instructions by the typist. The first Appellate Court, was, thus, right in holding, that from the evidence of Joginder Singh the execution of the Will dated 14.02.91, was not proved. 18. Even the Will, aforesaid, was surrounded by suspicious circumstances. The wife of Bulland Singh, was alive, at the time of the alleged execution of the Will. Harjap Singh, one of the Class 1 legal heirs of Bulland Singh, was also alive, at that time. It has also come, on record, that another son of Bulland Singh, who died earlier to the RSA No. 2571 of 2008 13 RSA No. 2572 of 2008 execution of the Will, had left a widow and son. All the aforesaid Class 1 legal heirs, including Avtar Kaur his daughter, were not given anything, vide the Will, in question. No plausible reason, was also assigned, in the Will, as to why these Class 1 legal heirs, were deprived of his property by Bulland Singh. Had any plausible reason been incorporated, in the Will, the matter would have been considered, in the light thereof. In the absence of any reason, having been given, in the Will, in this regard, the Court, cannot coin any of its own, to fit in with the case of the appellants. It is, no doubt, true that, the Will, is executed to deflect from the natural course of succession. However, while depriving some of the class 1 legal heirs, by the testator, he is required to give reasons, in the Will, or the propounder, is required to lead evidence, in regard thereto. In the absence of any reasons, either recorded, in the Will, or any evidence led, in that regard, such a suspicious circumstance, surrounding the Will, cannot be held to be dispelled. The trial Court, was, thus, right in holding, that the legality and validity of the Will, under these circumstances, was not proved. 19. Now coming to the compromise, it may be stated here, that Baljit Singh, appellant, himself admitted the same and also the sanctioning of mutation, on the basis thereof. This compromise, was also produced, before the Collector, and he sanctioned the mutation, on the basis thereof. The compromise, between the two brothers, namely Baljit Singh and Harjap Singh, in respect of the inheritance of the estate of Bulland Singh, could certainly be entered into with a view to RSA No. 2571 of 2008 14 RSA No. 2572 of 2008 amicably settle the family disputes, and to save the family members from unnecessary litigation. In Kale and others Vs. Deputy Director of Consolidation and others, AIR, 1976 (SC), 807, a case decided by a three Judge Bench of the Apex Court, it was observed, by the Apex Court, as under:- “The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same.” 20. In Kale and others' case (supra), it was, in clear-cut terms, held by the Apex Court, that even if, one of the parties to the settlement, has no title, but, under the arrangement, the other party relinquishes all its claims or titles, in favour of such a person, and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld, and, the Courts will find no difficulty, in giving assent, to the same. Even if, it is assumed for the sake of arguments, that, in the face of Will dated 14.02.91, Harjap Singh, had no antecedent title, once the compromise, was arrived at, to amicably settle the family disputes, and Harjap Singh, one of the sons of Bulland Singh, was given some share, in the RSA No. 2571 of 2008 15 RSA No. 2572 of 2008 property of Bulland Singh, his antecedent title, was acknowledged, to be in existence, by the other party, to the compromise. The first Appellate Court, was, thus, right in holding, that the compromise was legal and valid. 21. The first Appellate, was right, in holding, that Mohinder Kaur, who purchased the property, in dispute, from Harbhaj Singh, was the bonafide purchaser, in good faith, and for valuable consideration. The first Appellate Court, was also right, in holding, that Mohinder Kaur, was entitled to recover an amount of Rs. 18,000/-, as damages for three years from October, 1994 to October, 1997, and would be further entitled to recover further damages @ 6,000/- per annum, on her paying the Court fee, on the arrears of mesne-profits, from 1997 till date, as the property, she purchased, from Harjap Singh, was in illegal possession of Baljit Singh. 22. The findings of the first Appellate Court, on the aforesaid points, being based on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference, by this Court. The judgement and decree of the first Appellate Court, are, thus, liable to be upheld. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 23. The substantial questions of law, depicted above, are answered, against the appellants. 24. For the reasons recorded above, the instant Regular Second RSA No. 2571 of 2008 16 RSA No. 2572 of 2008 Appeals, being devoid of merit, must fail, and the same are dismissed with costs. 08.01.2010 (SHAM SUNDER) Amodh JUDGE