RSA No.2152 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2152 of 1989 Date of Decision: 2.2.2009 Budh Singh ..Appellant Vs. Gian Kaur & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Harbhagwan Singh, Sr. Advocate, with Mr.Amit K.Singh, Advocate, for the appellant. Mr.Animesh Sharma, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) The defendant/appellant by way of this regular second appeal RSA No.2152 of 1989 2 has challenged the judgment and decree dated 25.5.1989 passed by the learned lower appellate court decreeing the suit of the plaintiff/respondents for declaration. The plaintiff/respondents filed a suit for declaration to the effect that they are owners in possession of 80 kanals 9 marlas of land described in the head-note of the plaint, being legal heirs of Jamita deceased. In the alternative decree for possession was prayed for. The plaintiff/respondents pleaded that the land in dispute was owned by Jamita son of Julli, who was next collateral of the plaintiffs. Jamita went out of village, more than 17 years back and never came back in the village. The plaintiff/respondents being the next collateral of the deceased has been in possession of the land in suit. Jamita deceased was said to be issueless and unmarried and further that defendant-appellant had no relationship with Jamita. Plaintiffs claimed that the defendant was threatening to alienate the suit land by way of sale/mortgage etc by claiming that Will dated 17.4.1984 was executed in his favour and the mutation of the said Will also stood sanctioned in his favour. The plaintiff/respondents challenged the Will on the plea that Jamita never executed any Will in favour of the defendant and if any such Will is proved the same is null and void and not binding against the interest of the plaintiff/respondents. The defendant/appellant contested the suit by controverting the material facts. It was the case of the appellant/defendant that the plaintiffs were neither the owners nor in possession of the suit land and therefore, the suit for declaration and permanent injunction was not maintainable. It was RSA No.2152 of 1989 3 claimed by the defendant that he used to render services to the deceased Jamita who executed a registered Will in favour of the defendant on 17.4.1984. The defendant claimed that after the death of Jamita he was in possession of the land in dispute as a owner. Locus standi of the plaintiff/respondent to file the suit was also challenged. On the pleadings of the parties learned trial court was pleased to frame the following issues:- 1. Whether the plaintiffs are the heirs of Jamita deceased and have locus standi to file the suit? OPP 2. Whether the plaintiffs are in possession of the suit land and a suit for declaration and injunction is maintainable? OPP 3. Whether Jamita deceased executed a valid will in favour of the defendant on 17.4.1984? OPD 4. If issue No.3 is proved,whether the alleged will is the result of fraud, misrepresentation under influence and concealment of true facts? OPD 5. Whether the plaintiffs are estopped to file this suit by his act and conduct? OPD 6. Whether plaint is properly valued for purposes of court fee and jurisdiction? OPD 7. Whether the plaintiff is entitled to decree for declaration as in alternative in possession? OPP 8. Relief On issue No.1 learned trial court on the basis of evidence led RSA No.2152 of 1989 4 by the parties held that the plaintiffs were heirs of Jamita deceased and thus, had locus standi to file the suit. On issue No.2 in view of the revenue record placed on record and also admission of defendant while appearing as DW-3 it was held that the plaintiff/respondents were in possession of the suit land and therefore, the suit as framed was maintainable. On issue No.3 learned trial court held that the defendant examined DW 1 Harjinder Singh son of Thakur Singh i.e. the Deed Writer of Will dated 17.4.1984, which was said to have been executed by Jamita and scribed by him. Scribe also stated that the Will was signed by Jamita after understanding the contents and attesting witnesses also signed and thumb marked the Will. Bhajan Singh and Jagiri were said to be the attesting witnesses to the Will. The Will was registered in the office of Sub Registrar. Learned trial court took note of the documentary evidence i.e. voter list Ex.D.2 and death certificate of Jamita Ex.D.4. The court held that last rites of Jamita were performed by the appellant/defendant and thus, on the basis of evidence brought on record held that execution of Will was duly proved. Issue No.3 was accordingly decided in favour of the defendant/appellant and it was held that Jamita deceased executed a valid will in favour of the defendant/appellant on 17.4.1984. Issue No.4 was decided against the plaintiffs for want of evidence whereas Issues No.5 and 6 were decided against the defendant as not pressed. On issue No.7 in view of the findings recorded on issue No.3 it was held that the plaintiff/respondents were not entitled to decree for declaration and in the alternative for possession. Consequently, the suit was RSA No.2152 of 1989 5 dismissed. The plaintiff/respondents preferred an appeal against the judgment and decree and challenged the findings of learned lower appellate court on issue No.3. Learned lower appellate court affirmed the findings on issue No.1 and 2. Finding on issue No.3 were reversed by holding as under:- “ Budh Singh defendant has examined Harjinder Singh the scribe of the Will and Bhajan Singh one of the marginal witnesses. The scribe has confirmed that he recorded the will at the desire of Jamita and had read over to him who signed and thumb marked it. Bhajan Singh and Jagira Sarpanch were the marginal witnesses. In his cross-examination, he has admitted that he had not known Jamita personally. Bhajan Singh attesting witness appeared as DW 2 and stated that the will had been scribed at the desire of Jamita and was attested by Jagira and himself and the will is Ex.D.1. In his cross-examination, however, claimed that he was not present when Jamita signed the will but had gone away to take water. To my mind Bhajan Singh had made a very safe statement in order to avoid his prosecution with respect to the forgery of the will and putting up a false person as Jamita. He does not claim that the will was signed by Jamita nor does he state that the attested the will after getting any admission of Jamita to have executed the will. In this situation it cannot beheld that the will had been duly attested by two witnesses in RSA No.2152 of 1989 6 the presence of the testator and who had seen him signing. In his cross-examination Bhajan Singh claimed that Jamita came to their village in the year 1979 and he had not seen him earlier. That when he first saw him he found Jamita sitting on the road but he did not talk to him though he had seen him talking to other persons,. Budh Singh in his cross-examination claimed that prior to the year 1968 he had never seen Jamita but it was his father who had told him that Jamita was his cousin brother. That it was one Mela in the year 1976 when Jamita met him for the first time and he made inquiries from him and after making inquiries abut the names of his father and grandfather Jamita identified him. This statement can hardly be accepted as correct. To my mind Budh Singh and his father had brought some old man and put him up as Jamita in order to grab the property of Jamita deceased. His statement that Jamita met him in the Mela in the year 1976 is contradicted by Bhajan Singh who claims that he had seen Jamita for the first time in the year 1979 and that too sitting on a road where he was wearing clothes of a Sadhu. To my mind Bhajan Singh was conscious of the fact that it was an important thing as to who signed the will as Jamita. The evidence brought for this is not sufficient to hold that it was Jamita son of Julli who had executed the will. If in fact Jamita had returned from his vagrancy on which he went many years ago, and had identified some distant RSA No.2152 of 1989 7 collateral, it is unlikely that he did not visit his own village thereafter. 10. In the will it had been scribed that Budh Singh was his nephew but a reference to the pedigree table shows that Budh Singh is not related to Jamita in any of the degrees of the family. It was thus a false recital made in the will and it makes the will all the most suspicious. I accept the argument of Shri Bhag Singh who appears for the plaintiff/appellants that the will Ex.A.1 was a forgery and not executed by Jamita the last proprietor of the land in suit. The mere fact that the document was got registered by the person who claimed himself to be Jamita and his identify on the basis of Jagira Sarpanch accepted by the Tehsildar, was not sufficient to prove the case of the defendant. I hold the will to be a forge document and I set aside the finding of the trial court on issue No.3 and decide it in favour of the plaintiffs.” Other issues were not pressed. Consequently the suit filed by the plaintiff/respondents stands decreed. Mr.Harbhagwan Singh, learned senior counsel appearing on behalf of the appellant raised the following substantial question of law for consideration of this court in this appeal:- “Whether the lower appellate court has ignored important and vital evidence and has taken into consideration inadmissible evidence while reversing the judgment and decree of the trial RSA No.2152 of 1989 8 court? In support of the substantial question of law learned senior counsel appearing on behalf of the appellant vehemently contended that the finding recorded by the learned lower appellate court on issue No.3 is the outcome of non-consideration of documentary evidence brought on record. The contention of the learned senior counsel was that the stand of the plaintiff/respondents that Jamita had gone to foreign country for the last 17/18 years stood belied by the documentary evidence brought on record i.e. the voter list Ex.D.3 and the death certificate Ex.D.4. Learned senior counsel contended that in case the Ex.D.3 and Ex.D.4 along with oral evidence brought on record are considered in true perspective then it has to be held that the execution of the Will stood proved and the learned lower appellate court, therefore, was not justified in reversing the finding on issue No.3. Mr.Animesh Sharma, learned counsel appearing on behalf of the respondent/plaintiffs supported the judgment and decree passed by the learned lower appellate court and contended that the substantial question of law as framed does not arise for consideration. Learned counsel for the respondents contended that in the present case learned lower appellate court was right in holding that the Will was not proved in terms of Section 63 of the Succession Act, 1925 as the only attesting witness produced to prove the Will categorically stated that he was not present when Jamita signed the Will as he had gone away to take water. The contention therefore, was that once the execution was not proved in terms of Section 63 of the Succession RSA No.2152 of 1989 9 Act issue No.3 was rightly decided against the defendant/appellant. In support of this contention learned counsel for the respondents placed reliance on the judgment of the Hon'ble Supreme Court in the case of Girja Datt Singh Vs. Gangotri Datt Singh AIR 1955 SC 346, wherein Hon'ble Supreme Court has been pleased to lay down that to prove the due attestation of the propounder of the Will has to prove that the testator signed the Will, and further that they signed the same in the presence of the testator. Reliance was also placed on the judgment of Hon'ble Supreme Court in the case of Apoline D'Souza Vs. John D'Souza 2007 (3) RCR (Civil) 260, wherein Hon'ble Supreme Court has been pleased to lay down that mere fact that the Will was registered one would not dispense with the requirements of proof of due execution and attestation of the Will. Reliance was also placed on the judgment of Hon'ble Madhya Pradesh High Court in the case of Virendra Singh Pal Vs. Kashibai 1998 (4) RCR (Civil) 236 wherein the Hon'ble Madhya Pradesh High Court has been pleased to lay down that if executant affixed thumb mark subsequent to attestation by two witnesses on Will, said attestation is not attestation in the eye of law and Will deserves to be ignored. Mr.Animesh Sharma, learned counsel appearing on behalf of the respondents also relied upon the judgment of Hon'ble Supreme Court in the case of Janki Narayan Bhoir Vs. Narayan Namdeo Kadam 2003 (1) RCR (Civil) 409 to contend that a person propounding the Will has got to prove that the Will was duly and validly executed. The Will cannot be RSA No.2152 of 1989 10 proved simply by proving that signatures on the Will were that of the testator but must also prove that attestations were also made properly as required by Clause (c) of Section 63 of the Succession Act. Finally reliance was placed on the judgment of Hon'ble Madras High Court in the case of Rengasamy Vs. Rugmini and others 2007 (5) RCR (Civil) 72 to contend that though the Will could be proved by examining one attestor to the Will but if in the cross-examination he admits that he did not see the testator signing the Will the execution of the Will would not be proved. The contention of the learned counsel for the respondents is that the case in hand is squarely covered by the judgment of Hon'ble Madras High Court in the case of Rengasamy Vs. Rugmini and others (supra). On consideration of matter, I find force in the contentions raised by the learned counsel for the respondents. The requirement of attestation is statutory in nature, in view of Section 63 of Succession Act and cannot be done away with under any circumstances. While it is true that in a testamentary disposition, the intent of the attestor is to be assessed in its proper perspective but that does not, however, mean and imply non-compliance of statutory requirement. The intention of the attestor and its paramount importance cannot thwart the statutory requirement. No doubt the scribe has subscribed his signature but 'scribe' in accordance with common English parlance means and implies the person who writes the document. In England the King's Secretary is RSA No.2152 of 1989 11 popularly known as Scribaregis. Be that as it may, in common parlance an attribute of scribe as a mere writer does not stretch the matter further. In the contextual facts, while the writer did, in fact, subscribe his signature but the same does not underrate the statutory requirement of attestation. The strenuous submissions made in support of the appeal that attesting witnesses have no other role to play but to subscribe their signatures in order to prove the genuineness of the Will, therefore, cannot be accepted. In view of the settled proposition of law and the findings recorded above, the documents which are said to have been ignored by the learned lower appellate court were of no relevance as the defendant/appellant failed to prove the due execution of the Will. Learned lower appellate court was, thus, right in reversing the finding of the learned trial court on issue No.3. The substantial question of law raised is, thus, answered against the appellant/defendant. Consequently, the appeal is ordered to be dismissed but with no order as to costs. 2.02.2009 (Vinod K.Sharma) rp Judge