R. S. A. No. 3020 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3020 of 2010 Date of Decision : March 07, 2011 Harjot Singh and others .... Appellants Vs. Gurjit Kaur and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Anil Kshetarpal, Advocate for the appellants. Mr. Inderbir Singh, Advocate and Mr. Harsh Bunger, Advocate for the respondents. * * * L. N. MITTAL, J. (Oral) : Defendants no.1 to 4, who were successful in the trial court, but have been unsuccessful in the lower appellate court, have filed the instant second appeal. Lakhmir Singh had only one son i.e. Harcharan Singh and two daughters i.e. Gurjit Kaur – respondent no.1/plaintiff and Rajinder Kaur – defendant no.8/proforma respondent no.5. Harcharan Singh died on 30.08.2001 during the lifetime of Lakhmir Singh. Harcharan Singh left R. S. A. No. 3020 of 2010 2 behind defendants no.1 to 3 as minor sons and defendant no.4 as widow. Case of the plaintiff is that relinquishment deed dated 10.06.2001 registered on 10.09.2001 allegedly executed by Lakhmir Singh in favour of defendants nos. 1 to 3 regarding suit land measuring 55 kanals 01 marla is illegal and null and void along with consequent mutation no.638 entered on its basis because the said release deed was not executed by Lakhmir Singh and also because the suit land being self acquired property of Lakhmir Singh, he could not transfer it by way of release deed to defendants no.1 to 3, who had no pre-existing right in the suit land. Consequently, the plaintiff also sought relief of joint possession of the suit land being among the legal heirs of Lakhmir Singh, who died on 25.10.2001. Ancillary relief of permanent injunction was also claimed. Defendants no.1 to 5 broadly controverted the plaint allegations, while admitting the relationship between the parties. It was pleaded that Lakhmir Singh himself executed the registered release deed dated 10.09.2001 in favour of defendants no.1 to 3, who have accordingly become owners in possession of the suit land. Defendant no.8 also supported the case of defendants no.1 to 5. Defendants no.6 and 7 filed written statement broadly taking the same stand. Release deed was pleaded to be legal and valid by all the defendants. Learned Civil Judge (Junior Division), Yamunanagar at Jagadhari, vide judgment and decree dated 31.07.2008, dismissed the R. S. A. No. 3020 of 2010 3 plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Yamunanagar at Jagadhari, vide judgment and decree dated 21.05.2010 and thereby, suit filed by the plaintiff has been decreed. It has been held that plaintiff and defendant no.8 are entitled to one-third share each in the suit land, whereas defendants no.1 to 4 have the remaining one-third share in the suit land, as per natural succession of Lakhmir Singh. Feeling aggrieved, defendants no.1 to 4 have filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. At the outset, it has to be noticed that in the impugned release deed, date of its execution has been inadvertently mentioned as 10.06.2001, but counsel for the parties concede that release deed was executed on 10.09.2001 and was registered on the same date. Learned counsel for the appellants contended that defendants have examined both the attesting witnesses of the release deed namely Kulwant Singh (defendant no.5) and Surjit Singh (defendant no.6) and both of them have supported the version of the defendants that the aforesaid release deed was executed by Lakhmir Singh voluntarily. It was also contended that by way of release deed, Lakhmir Singh was competent to transfer title in the suit land in favour of his grandsons i.e. defendants no.1 to 3 (sons of pre-deceased son of Lakhmir Singh), even though defendants R. S. A. No. 3020 of 2010 4 no.1 to 3 had no pre-existing right in the suit land. Reliance in support of this proposition has been placed on judgment of Hon'ble Supreme Court in the case of Kuppuswami Chettiar vs. Arumugam Chettiar reported as AIR 1967 SC 1395. On the other hand, learned counsel for respondent no.1-plaintiff vehemently contended that execution of the release deed by Lakhmir Singh is surrounded by suspicious circumstances. It was pointed out that on 24.08.2001, many release deeds were executed by Lakhmir Singh and his brothers etc. regarding mutual partition and Lakhmir Singh affixed his thumb impressions and not signatures on the said release deeds as he was physically unfit to affix his signatures. It was also pointed out that Lakhmir Singh did not attend the funeral of his son Harcharan Singh, who died on 30.08.2001 being physically unfit, and therefore, he could not have affixed his signatures on the impugned release deed dated 10.09.2001. It was also pointed out that suit land was self-acquired property of Lakhmir Singh, and therefore, defendants no.1 to 3 had no pre-existing right therein and consequently, there could be no valid release deed for transferring title in the suit land by Lakhmir Singh in favour of defendants no.1 to 3 as release deed is executed for enlarging any pre-existing right in the suit property. Reliance in support of this proposition has been placed on four judgments i.e. a judgment of Rajasthan High Court in the case of R. S. A. No. 3020 of 2010 5 State vs. Alokik Jain and others reported as 1998 AIR (Raj) 348, a judgment of Bombay High Court namely Shri Shailesh Harilal Poonatar vs. District Collector of Stamps and others reported as 2005 AIR (Bombay) 29, a judgment from High Court of Andhra Pradesh in the case of J. Kubera Mandadi and others vs. K. Doraswamy Mandadi and others reported as 2005 (4) ALT 728 (Equivalent Citation) and lastly a judgment of Delhi High Court namely Mahip Singh Thakur vs. Hema Thakur reported as 2005 (120) DLT 173. It was also submitted that plaintiff has examined handwriting expert, who has opined that signatures of Lakhmir Singh on the impugned release deed do not match with his standard signatures. It was also contended that defendant no.7, who is maternal uncle of defendants no.1 to 3, had no right to accept the release deed on their behalf. I have carefully considered the rival contentions. Twin issues are required to be decided. First is whether release deed was actually executed by Lakhmir Singh or not ? Second is whether the release deed could validly transfer the title in the suit land in favour of defendants no.1 to 3 ? As regards first issue, defendants have led direct evidence by examining both attesting witnesses of the release deed. They have stated that the release deed was executed and got registered by Lakhmir Singh R. S. A. No. 3020 of 2010 6 himself voluntarily. Their statements could not be impeached in cross- examination. There could be no better evidence to p rove due execution of the release deed. It may be added that Kulwant Singh – attesting witness is Lambardar of the village, whereas Surjit Singh – attesting witness is relative of defendant no.4 being husband of her first cousin sister. The defendants have thus led best possible evidence to prove due execution of the release deed. In addition to it, the release deed is registered one. Registration of the release deed further adds to its authenticity. The release deed also bears photograph of Lakhmir Singh on the endorsement of registration. It further depicts that it was Lakhmir Singh himself, who executed the release deed and got it registered and he was not impersonated at the time of execution and registration of the release deed. Opinion of handwriting expert examined by the plaintiff cannot prevail over direct evidence of attesting witnesses of the release deed, particularly because release deed is registered one. Science of comparison of handwriting or signatures is weak science. Ordinarily, handwriting expert engaged by a party gives opinion in favour of that party. In the instant case, therefore, mere opinion of handwriting expert is not sufficient to over-ride the reliable testimony of both the attesting witnesses of the release deed so as to discard the registered release deed. Merely because Lakhmir Singh affixed his thumb impressions R. S. A. No. 3020 of 2010 7 on some other release deeds on 24.08.2001, but affixed his signatures on the impugned release deed, the impugned release deed cannot be discarded. There may be many reasons for affixing thumb impressions on release deeds dated 24.08.2001 and not necessarily that he affixed thumb impressions on the said deeds being physically unfit. Similarly, the fact that Lakhmir Singh did not attend the funeral of his only son would not be sufficient to come to the conclusion that he was physically unfit to execute the impugned release deed dated 10.09.2001. In view of the aforesaid discussion, I have no hesitation in concluding that execution of impugned release deed by Lakhmir Singh is fully proved. As regards second issue, the same is concluded in favour of the appellants by judgment of Hon'ble Supreme Court in the case of Kuppuswami Chettiar (supra). The said judgment completely answers the contention raised on behalf of respondent no.1-plaintiff. In this judgment, Hon'ble Supreme Court rejected similar contention that release deed is meant to enlarge a right already existing in the suit property in favour of the releasee. On the contrary, it was held that a deed called a deed of release can, by using words of sufficient amplitude, transfer title to one having no title before the transfer. In the instant case, the impugned release deed is very clear and the releasor Lakhmir Singh, by executing the impugned release deed, transferred title in the suit land to defendants no.1 to R. S. A. No. 3020 of 2010 8 3. Consequently, this release deed has the effect of transferring title in the suit land in favour of defendants no.1 to 3, who had no pre-existing right or title in the suit land. Judgments in the cases of Alokik Jain and Shri Shailesh Harilal Poonatar (supra) relate to stamp duty chargeable on a document. Judgments in the cases of J. Kubera Mandadi and Mahip Singh Thakur (supra) do, to some extent, support the contention advanced by learned counsel for respondent no.-1-plaintiff. However, in view of judgment of Hon'ble Supreme Court in the case of Kuppuswami Chettiar (supra), the contention canvassed by counsel for respondent no.1-plaintiff cannot be accepted. Judgment in the case of Kuppuswami Chettiar (supra) is very categorical and lays down in clear words that even title can be transferred by way of release deed in favour of a person, who already had no title in the property. For the reasons aforesaid, I find that following substantial questions of law arise for determination in the instant second appeal :- “1. Whether finding of the lower appellate court that impugned release deed was not executed by Lakhmir Singh is illegal and perverse and not sustainable in the eyes of law in the facts and circumstances of instant case ? R. S. A. No. 3020 of 2010 9 2. Whether finding of the lower appellate court that by impugned release deed, Lakhmir Singh could not validly transfer title in the suit land to defendants no. 1 to 3, who had no pre- existing right or title in the suit land is legally unsustainable ?” As a necessary upshot of the discussion already made, both the aforesaid substantial questions of law are answered in affirmative i.e. In favour of the appellants. Resultantly, the instant second appeal is allowed. Judgment and decree of the lower appellate court are set aside and judgment and decree of the trial court, thereby dismissing the suit of the plaintiff- respondent no.1, are restored. Parties are left to suffer their respective costs throughout. March 07, 2011 ( L. N. MITTAL ) monika JUDGE