Regular Second Appeal No. 1215 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1215 of 2008 Date of Decision: September 09, 2009 Harbans Lal ......... Appellant versus Basant Lal and others .......... Respondents Present:- Shri Deepak Sibal, Advocate for the appellant. Shri Arun Jain, Senior Advocate with Shri Amit Jain, Advocate for respondents No.1 to 3 HEMANT GUPTA, J. Defendant No.1 is in second appeal aggrieved against the judgment and decree passed by the learned First Appellate Court whereby suit of the plaintiffs to claim joint possession by way of natural succession, was decreed. Banarsi Dass whose estate is in dispute died issueless on 29.08.1997. He had two brothers Baini Parshad and Puran Chand. The plaintiffs are sons of Puran Chand, whereas Harbans Lal, defendant No.1, the appellant is grand son of Baini Parshad and s/o Hukam Chand. Defendant No.2 is Babu Ram son of Baini Parshad. It is the case of the plaintiffs that the property in the hands of Banarsi Dass was joint Hindu Family property and, therefore, he could not suffer decree dated 23.3.1996 in favour of the present appellant. The Regular Second Appeal No. 1215 of 2008 [2] plaintiffs propounded Will dated 30.08.1990 allegedly executed by Bansari Dass bequeathing his estate in favour of the parties in equal shares. The plaintiffs also challenged the Will dated 04.12.1996, propounded by the defendant on the basis of which mutation was sanctioned, as not executed and surrounded by suspicious circumstances. The learned trial Court dismissed the suit after returning a finding that the appellant is not proved to be adopted son of Banarsi Dass i.e., basis of decree dated 23.3.1996. The learned trial Court found that the statement of the appellant is itself contradictory and not supported by any other evidence and there is not evidence of giving and taking ceremony necessary for adoption. Therefore, the appellant is not proved to be the adopted son of Banarsi Dass. However, challenge to the decree dated 23.3.1996, Exhibit P8, was negated as there was no fraud or misrepresentation allegedly suffered on Banarsi Dass while suffering the aforesaid decree. Similarly, Will dated 4.12.1996 Exhibit D-1 was proved to be executed on the basis of statement of DW5 S.K. Sharma, scribe of the Will; DW6 B.R. Sharma, an attesting witness and DW8 Gurmeet Singh, Sub Registrar at the relevant time. The learned trial Court also found that the Will is not surrounded by suspicious circumstances. However, in appeal, while maintaining the finding that the appellant is not proved to be adopted son of Banarsi, it was found that decree dated 23.3.1996 is actuated by fraud. It was found that the suit was filed on 3.1.1996. It was assigned to the Court for 4.1.1996. On 5.1.1996, an application was filed to take up the file to record the statement of Banarsi Dass. The written statement admitting the claim of Harbans Lal was filed on 5.1.1996 and the decree granted on 23.3.1996 with regard to land measuring Regular Second Appeal No. 1215 of 2008 [3] 10 Kanals 4 Marlas. It was found that without giving any document of adoption and without proving the adoption, the defendant claimed himself to be the son of Banarsi Dass. Relying upon Ram Chandra Singh vs. Savitri Devi, 2003(3) Civil Court Cases 678, it was found that it is fraud in law if a party makes representation, which he knows to be false and injury ensues there from although the motive from which the representations proceeded may not have been bad. In the aforesaid judgment, reliance is placed upon earlier judgment of Supreme Court reported as Nagubai Ammal and others vs. B. Shama Rao and others, AIR 1956 SC 593 wherein it has been held to the following effect:- “15. Now, there is a fundamental distinction between a proceeding which is collusive and one which is fraudulent. “Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose”. (Wharton's Law Lexicon, 14th Edn. p.212). In such a proceeding, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. But when a proceeding is alleged to be fraudulent, what is meant is that the claim made therein is untrue, but that the claimant has managed to obtain the verdict of the court in his favour and against his opponent by practising fraud on the Regular Second Appeal No. 1215 of 2008 [4] court. Such a proceeding is started with a view to injure the opponent, and there can be no question of its having been initiated as the result of an understanding between the parties. While in collusive proceedings the combat is a mere sham, in a fraudulent suit it is real and earnest.” In the proceedings leading to decree dated 23.3.1996, the claim put up by the plaintiff was fictitious, the contest over it is unreal and the decree passed therein was a mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. Therefore, the said decree is nothing but fraud. This Court in a judgment reported as Gurcharan Singh and others vs. Angrez Kaur and another, 2008(4) Recent Civil Reports (Civil) 178 has set aside a consent decree where the relationship claimed to obtain a consent decree was found to be incorrect and that it was held the decree passed on the representation of incorrect relationship is fraudulent. In view of the above, I do not find any illegality in the finding recorded by the learned First Appellate Court that the decree dated 23.3.1996 is a fraudulent decree and is a fraud played by the appellant on the Court. In fact, it may be noticed that the defendant is claiming the estate of deceased Banarsi Dass on the basis of registered Will dated 4.12.1996. In the said Will, Banarsi Dass has described himself to be issueless. The said Will is attested by B.R. Sharma, Advocate. The earlier suit which led to the decree dated 23.3.1996 was filed by the appellant through Shri B.R Sharma, Advocate. Therefore, the contradictory plea raised by Banarsi Dass after 8 months of the filing of written statement, admitting the appellant to be as Regular Second Appeal No. 1215 of 2008 [5] the adopted son, shows that the pleadings were filed without any truth. Thus, I do not find any illegality or material irregularity in the finding recorded by the learned First Appellate Court that the decree dated 23.3.1996 is the result of fraud. While examining due execution of Will dated 4.12.1996, Exhibit D1, the learned First Appellate Court has recorded a finding that the said Will is surrounded by suspicious circumstances. Banarsi Dass has contradicted himself in the written statement which led to decree dated 23.3.1996 in respect of relationship of the appellant as his adopted son with recital in the Will dated 4.12.1996 as an issueless person. The learned First Appellate Court has also found that if Banarsi Dass had suffered a decree in respect of land measuring 10 Kanals 4 Marlas on 23.3.1996, it has not been explained what was the necessity of executing Will on 4.12.1996. Though the learned counsel for the appellant has vehemently argued that in the Will dated 04.12.1996 entire immovable and movable property has been bequeathed in favour of the appellant but what was other property of Banarsi Dass could not be explained by the learned counsel for the appellant. It is apparent that the appellant was bent upon to create document so as to claim the estate of Banarsi Dass in one way or the other. Learned First Appellate Court has also taken into consideration that the scribe of the Will S.K. Sharma and one of the attesting witness B.R. Sharma are real brothers. B.R. Sharma is Advocate of the appellant when he filed the suit to claim a decree on the basis of adoption. The learned First Appellate Court has also found that laminated Will Exhibit D-1 has been placed on record which contains the photographs of Banarsi Dass who executed the Will and Harbans Lal but such photographs were not taken in the office of the Sub Regular Second Appeal No. 1215 of 2008 [6] Registrar nor endorsed in the office of Sub Registrar. Therefore, the act of fixing of photograph of the executant and the beneficiary is a suspicious circumstance. Learned counsel for the appellant has vehemently argued that recital in the Will dated 4.12.1996 that Banarsi Dass has died issueless cannot be used against him while considering the validity and legality of the Will. It is also contended that the execution of the Will is proved when one of the attesting witness has been examined apart from the scribe and the Sub Registrar. The said arguments are not tenable. The scribe and attesting witnesses are the real brothers. The attesting witness is an Advocate through whom the suit leading to the consent decree was filed. The manner for obtaining the decree and subsequently the Will are strong suspicious circumstance which dispel the proof of due execution of Will dated 04.12.1996. The learned First Appellate Court has recorded a finding of fact that such Will is surrounded by suspicious circumstance. Such finding is sought to be disputed by way of re-appreciation of evidence. It has not been pointed out that any evidence has been misread or has not been taken into consideration. In view of the above, I do not find any patent illegality or material irregularity in the findings recorded by the learned First Appellate Court which may give rise to any substantial question of law for determination of this Court in second appeal. Dismissed. September 09, 2009 ( HEMANT GUPTA ) ks JUDGE