IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.123 of 1981 (O&M) Date of Decision: 11.9.2008 Lachhman .....Appellant Vs. Suram Singh and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. G.S. Jaswal, Advocate for the appellant. Mr.V.K. Jain, Senior Advocate with Mr.Desh Pal Singh Rana, Advocate for the respondents. ... RAJIVE BHALLA, J (Oral) CM No.527-C of 2007 Prayer in this application filed under Order 41 Rule 27 read with Section 151 CPC is for permission to lead additional evidence of a handwriting expert so as to establish that the thumb impressions appearing on the disputed will are not of Smt Indro. I have heard learned counsel for the parties. The applicant- appellant cannot be allowed to lead additional evidence at this belated stage. At no stage of the proceedings, whether before the trial Court or the first appellate Court or even during the pendency of this appeal, since the year 1981, was any such application filed. To allow such an application at this belated stage would reopen the entire controversy. Consequently, the application is dismissed. CM No.6922-C of 2000 Prayer in this application filed under Order 1 Rule 10 read with Section 151 CPC is for impleading Gurcharan Singh, Gurbachan Singh sons of Som Nath and Sarwan Singh s/o Bhagat Ram as respondents no.9, 10 and RSA No.123 of 1981 2 11. Counsel for the applicant submits that during the pendency of the suit, Varinder Singh and Paramveer sons of Suram Singh, (respondent no.1) sold a part of the suit property to Gurcharan Singh and Gurbachan Singh sons of Som Nath by registered sale deed dated 2.8.2000. It is, therefore, prayed that Gurcharan Singh and Gurbachan Singh and also Sarwan Singh be impleaded as respondents no.9, 10 and 11. The respondents, on the other hand submit that relief in the present suit is with respect to half share of 220 kanals 19 marlas, Varinder Singh and Paramveer have executed a sale deed with respect to land, which falls within their half share and even otherwise as the vendees are neither necessary nor proper parties, the application be dismissed. I have heard learned counsel for the parties and perused the averments in the application. In the suit, in hand, the appellant prays that he is owner of land measuring 220 kanals 19 marlas, alongwith the respondents. It appears that the respondents have sold land, within their shareholdings. Gurcharan Singh and Gurbachan Singh and Sarwan Singh being vendees pendente lite, are neither necessary nor proper parties. The application is consequently dismissed. RSA No.123 of 1981 The appellant, challenges the judgement and decree dated 18.9.1980, passed by the Additional District Judge,Hoshiarpur, accepting the appeal filed by the respondents , reversing the judgement and decree passed by the learned trial Court and as a result dismissing the suit filed by the appellant. RSA No.123 of 1981 3 The appellant filed a suit claiming to be owner of half share of land measuring 220 kanals 19 marlas owned and possessed by Smt.Indro, widow of Sibba, who passed away without leaving behind any Class-I heir. It is averred in the plaint that as the appellant and Suram Singh respondent no.1, are related in equal degrees to Smt.Indro through her husband, they are entitled to succeed to her estate, in equal shares. It is further alleged that Suram Singh, respondent no.1, in collusion with other respondents, took forcible possession of the suit land claiming to have succeeded to her estate on the basis of a Will dated 5.2.1964. The Will does not bear the thumb impression of Smt. Indro and could not have been executed by her as she became mentally deranged five years before her death. It is alleged that some other lady was made to impersonate her during the execution and registration of the Will. The suit was resisted by Suram Singh, defendant no.1 by denying the facts pleaded in the plaint and by asserting that Smt. Indro executed a registered Will dated 5.2.1964 Ex.D-1 in his favour. It was denied that the Will was forged or fabricated. The appellant filed a replication controverting the averments in the written statement. The trial Court, thereafter, proceeded to frame the following issues :- “1. Whether Lachhman Singh is the legal heir of Shrimati Indro deceased and is entitled to succeed to the suit property ? OPP. 2. Whether Shrimati Indro deceased had executed a valid Will dated 5.2.1964 in favour of defendant no.1 ? OPD. 3. Relief.” RSA No.123 of 1981 4 Pursuant to its judgement and decree dated 1.12.1972, the Sub Judge, Ist Class, Hoshiarpur, Camp at Garhshankar, rejected the Will by holding that its execution was surrounded by suspicious circumstances. It was, therefore, held that the appellant and Suram Singh were entitled to succeed to the estate of Smt. Indro, in equal shares. Aggrieved by this judgement, respondent no.1 filed an appeal. The first appellate Court accepted the appeal, set aside the judgement and decree passed by the trial Court and dismissed the suit by holding that respondent no.1 had succeeded in establishing the due execution of Will and in dispelling all suspicious circumstances. It was also held that the appellant failed to prove his allegations that the Will was executed by someone who impersonated Smt. Indro Devi. Counsel for the appellant submits that the first appellate Court, committed serious errors that render its judgement illegal and perverse. It is submitted that the trial Court assigned cogent and valid reasons for rejecting the testimony of the attesting witnesses, Subedar Sant Singh DW- 1 and Parkash Chand Thapar DW-2, namely that the attesting witnesses were not acquainted with her personally and Smt. Indro an old, illiterate and infirm lady aged between 80-90,could not be expected to walk up to a stranger and request him to act as an attesting witness to her Will. The learned trial Court also relied upon an admission by Suram Singh, respondent no.1, that whenever Smt. Indro left the house, she was accompanied by his wife. The learned trial Court also held that Smt. Indro could not have provided the particulars of her Ludhiana address and could not have narrated the recitals in the Will. It is further submitted that the Will was executed at Ludhiana whereas as Smt. Indro was a permanent RSA No.123 of 1981 5 resident of Village Binewal. The trial Court, therefore, held that respondent no.1 has failed to dispel suspicion that arose with respect to the execution of the Will. It is submitted that the first appellate Court, failed to appreciate that these suspicious circumstances had not been dispelled by the respondent. It is further submitted that the reasons recorded by the trial Court for discarding the testimony of the attesting witnesses and the suspicious circumstances pointedly referred to by the trial Court' have not been dealt with by the first appellate Court. The first appellate Court proceeded to accept the Will as genuine, for totally irrelevant and inconsequential reasons. It is submitted that in view of the errors committed by the first appellate Court, the following substantial questions of law arise for consideration :- “1. Whether the first appellate Court's judgement is perverse and illegal,as while reversing the trial Court's judgement, it has failed to advert to or deal with the findings recorded by the trial Court” ? 2. “Whether the first appellate Court was right in holding that respondent no.1 had successfully established the due execution of the Will dated 5.2.1964 and dispelled all suspicious circumstances surrounding its execution” ? Counsel for the respondents, on the other hand,submits that the questions of law framed by counsel for the appellant do not arise for consideration in the present appeal. The proof of a Will, is a pure question of fact. The First appellate Court, has after a considered appraisal of the RSA No.123 of 1981 6 pleadings and the evidence on record upheld the validity of the Will. The appellants have failed to point out any error of law in the impugned judgement. It is further argued that the first appellate Court has dealt with the pleadings and the evidence in a great degree of detail and after considering the findings recorded by the trial Court, has proceeded to record its opinion against the findings recorded by the trial Court and in favour of the execution of the Will. Another submission pressed into service by counsel for the respondents is that in para three of the plaint, the appellant pleaded that Smt. Indro became mentally deranged, five years before her demise and, therefore, could not have executed the Will. The appellant also averred that the Will was the result of an impersonation, perpetuated by respondent no.1. The appellant, however, failed to produce any evidence in support of these averments and while adducing evidence, set up an entirely new case by alleging that Smt. Indro resided at Village Binewal and never resided with respondent no.1 at Ludhiana. Evidence was led in an attempt to establish that the appellant left her at Ludhiana, a fortnight before her demise, as she was indisposed. It is submitted that this evidence was rightly rejected by the first appellate Court, as beyond pleading. It is submitted that as the appellant has failed to prove the allegations of fraud and/or impersonation in the execution of the Will, the first appellate Court rightly accepted the appeal. I have heard learned counsel for the parties and perused the impugned judgement. The execution of a Will, in accordance with the provisions of Section 63 of the Indian Succession Act, 1925 and the proof thereof in RSA No.123 of 1981 7 accordance with the provisions of Section 68 of the Indian Evidence Act, 1872, is primarily a question of fact. A finding recorded for or against the execution of a Will would invite interference, in second appeal, only where the findings suffers from a failure to consider relevant pleadings or material evidence, or a fundamental error in applying the law or a perversity in the appreciation of evidence or in the process of reasoning that renders the judgement illegal, arbitrary or void. It would, therefore, be appropriate to examine the impugned judgement, so as to ascertain, whether it suffers from any of the above referred infirmities. The first substantial question of law, arises from an assertion put forth, by counsel for the appellant that while accepting the appeal and reversing the trial Court's judgement, the first appellate Court, did not advert to or deal with the findings returned by the trial Court. If true, this assertion would necessarily render the impugned judgement illegal as an appellate Court is required to consider, advert to and record its opinion with regard to findings returned by a trial Court, particularly where it proposes to reverse these findings. The situation, however, in the instant case is entirely different. The first appellate Court has not only adverted to the findings recorded by the trial Court but has also dealt with them by assigning clear and cogent reasons for its conclusions. The second question of law, arises from the first appellate Court's finding that the appellant has successfully proved the due execution of the Will and dispelled all suspicious circumstances surrounding its execution. Answers to these questions are so intertwind as to require their being answered together. The dispute in the instant appeal revolves around the execution RSA No.123 of 1981 8 of a registered Will dated 5.2.1964 Ex.D-1 allegedly executed by Smt.Indro, and as a consequence to the inheritance to her estate. The onus to establish that the Will was executed in accordance with the procedure prescribed under Section 63 of the Indian Succession Act, 1925, to prove its execution in accordance with Section 68 of the Indian Evidence Act, 1872 and to dispel all suspicious circumstances, if any, lies upon its propounder. Once discharged, the onus to establish his defence shifts to the caveator, who shall thereafter proceed to prove his objections to the execution of the Will. Smt. Indro executed a registered Will on 5.2.1964, four years before her death in 1968. During her life time, she did not, cancel the Will or execute any other Will. In order to prove/the execution of the Will, respondent no.1, in addition to stepping into the witness box, produced the attesting witnesses DW-1 Subedar Sant Singh and DW-2 Parkash Chand. They deposed in unison that Smt.Indro was hale and hearty and was of sound disposing mind when she executed the Will. They also deposed that the Will was read over and explained to her, after it was scribed by the deed writer, Hukam Singh. She then affixed her thumb impressions, on the Will, in token of its correctness and the attesting witnesses signed the Will in her presence. The Will was then presented before the Sub-Registrar, who made an endorsement Ex.D-1/A. Smt.Indro thumb marked the will and the attesting witnesses signed it in token of their presence. DW-1 and DW-2, therefore, proved the execution of the Will. The learned trial Court, however, disbelieved the attesting witnesses by holding that they were not acquainted with Smt.Indro personally as DW-1 admitted that he did not know her when she requested RSA No.123 of 1981 9 him to attest the Will. DW-2's deposition was discarded as, though the Municipal Commissioner of the ward, he failed to disclose the number of voters in Suram Singh's house and to an answer a question whether Smt.Indro's name appeared in Suram Singh's ration card. Another circumstance, pressed into service by the trial Court was that Suram Singh deposed that whenever Smt. Indro left his house, she was accompanied by his wife. It was, therefore, concluded that an old, illiterate women could not be expected to move around alone in Ludhiana and could not be expected to give her correct address and narrate the recitals in the Will to the deed writer. The Will was also held to be suspicious as particulars of the property bequeathed were not forthcoming. The learned trial Court also held that even if the Will was executed by Smt Indro Devi, respondent No.1 or his family members had influence over her and, therefore, the Will had to be rejected. The first appellate Court after a detailed consideration of the pleadings and the evidence reversed those findings and upheld the execution of the Will. The first appellate Court held that the attesting witnesses were independent, as they were not connected to the beneficiary in any manner and, therefore had no reason to become parties to a fraudulent Will. DW-1 is a shopkeeper of the locality whereas DW2 is the local Municipal Commissioner, who runs a coal depot in the area. Their depositions were held to be truthful and a clear and cogent narration of the facts that led to the execution of the Will and its registration before the Sub- Registrar. The first appellate Court also held that the appellant had failed to prove his primary stance as reflected in the plaint, that as Smt.Indro was mentally deranged, she could not have executed the Will. RSA No.123 of 1981 10 The reasons set forth by the first appellate Court, while differing with and reversing the view taken by the trial Court in my considered opinion are neither perverse nor illegal and do not raise any substantial question of law. DW-2, an attesting witness, is the Municipal Commissioner of the Ward, where Suram Singh resides. It was, therefore, natural for Smt.Indro to approach DW-2 with a request to attest a Will, she proposed to execute. The other witness admittedly runs a shop, close to Suram Sing's house. This witness fairly admitted that he did not know Smt. Indro personally and his explanation that her identity was disclosed by residents of the area is a reflection of his honesty and was, therefore, wrongly held by the trial Court to be a suspicious circumstance sufficient to discard his deposition. The attesting witnesses are independent and are not related to the beneficiary and have no dealings with him. They have deposed in unison about the execution and the registration of the Will. Their depositions do not suffer from any contradictions and were, therefore, rightly accepted by the first appellate Court. An aspect, that was considered suspicious by the trial Court is that an old, infirm and illiterate lady could not be expected to narrate the recitals in a Will or remember the address of her house. The learned trial Court, apparently lost sight of the fact that Smt. Indro was not alone at the time of the execution and registration of the Will. She was accompanied by the Municipal Commissioner of her Ward and by DW-1, a shopkeeper of the locality. Even if, she were illiterate and unaware of the address, the attesting witnesses could have easily provided the address to the scribe. It would also have to be noticed that a deed writer receives instructions from a party and thereafter places them in a correct legal format. Deed writers are specially appointed to ensure that documents RSA No.123 of 1981 11 are executed in their proper legal format. It appears that the trial Court was overtly concerned about the old age of the deceased and that she was illiterate and, therefore, proceeded to conclude the existence of undue influence and suspicious circumstances, where there were none. I, therefore, have no hesitation in holding that the first appellate Court rightly held that the Will stood proved and all suspicious circumstances stood dispelled. It would, however, require pointed mention and as held by the first appellate Court that the trial Court failed to consider the averments in the plaint, the allegations levelled therein and the fact that the appellant had failed to adduce any evidence in support thereof. The positive case set up by the appellant in his plaint is :- (a) Smt.Indro was mentally deranged for a period of 5 years before the execution of the Will and remained as such till she passed away. (b) The Will does not bear the thumb impression of Smt. Indro. (c)If the thumb impression are established to be those of Smt. Indro, they were not affixed voluntarily and in sound disposing mind. The appellant, admittedly has not lead any evidence to establish the mental state of the testator, the falsity of the thumb impressions, the allegations of impersonation or the allegations of undue influence. The evidence adduced by the appellant, is devoid of any material that would RSA No.123 of 1981 12 even remotely suggest that Indro Devi was mentally deranged or that the thumb impressions were obtained by fraud, coercion or impersonation. The onus to establish the execution of the Will and to dispel all suspicious circumstances lay upon Suram Singh. After he discharged this obligation, the onus to establish the allegations of fraud, coercion or impersonation shifted to the appellant. The appellant was, therefore, required to adduce evidence, to establish that a lady other than Smt. Indro affixed her thumb impressions and appeared before the Sub-Registrar. The appellant was also required to establish his allegations of undue influence and fraud. As referred to herein before the appellant has failed to adduce any evidence to support these allegations and instead altered his stance and led evidence, in an attempt to establish that Smt. Indro was a permanent resident of Village Binewal and could, therefore, not have executed the Will at Ludhiana. This evidence was rightly rejected by the first appellate Court. The appellant did not aver in the plaint that Smt. Indro did not reside at Ludhiana or that she was not residing at Ludhiana in the year 1964, the year of the execution of the Will. In the absence of any pleadings, the trial Court, could not have held that Smt. Indro did not reside at Ludhiana in the year 1964 or that she did not reside with Suram Singh at Ludhiana. In view of what has been stated herein above, there can be no doubt that the Will Ex.D-1 was executed by Smt.Indro, duly attested by the attesting witnesses DW-1 and DW-2 and thereafter registered before the Sub-Registrar. Furthermore, respondent no.1 has successfully dispelled the suspicious circumstances surrounding the execution of the Will. It would, therefore, have to be held that the first appellate Court rightly accepted the appeal, reversed the judgement and decree passed by the trial Court and RSA No.123 of 1981 13 dismissed the suit. As regards the first question of law framed by counsel for the appellant, it would have to be held that the first appellate Court dealt with the findings recorded by the trial Court, discussed them in detail and thereafter reversed them by assigning clear and cogent reasons. The second question of law relates to the proof of the execution of a Will, a pure question of fact, that can only be reversed in second appeal, if the findings disclose, a failure to consider relevant pleadings or material evidence or a fundamental error in applying the law or a perversity in the process of reasoning that renders the judgment arbitrary, illegal or void. The impugned judgement does not suffer from any of the above mentioned infirmities. In view of what has been stated herein above, the appeal is dismissed with no order as to costs. 11.9.2008 (RAJIVE BHALLA) GS JUDGE