RSA No. 1310 of 1984 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1310 of 1984 Date of Decision: 19.12.2008 Amar Singh ....Appellant. Versus Lajya Devi and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. G.S. Jaswal, Advocate for the appellant. Mr. D.R. Mahajan, Advocate for the respondents. AJAY KUMAR MITTAL, J. This regular second appeal filed by the plaintiff is directed against the judgment and decree dated 17.1.1984 passed by the first appellate court whereby that of the trial court dated 24.9.1983 decreeing the suit of the plaintiff for declaration was set aside and the suit of the plaintiff was dismissed. Shorn off unnecessary details, the relevant facts of the case are that plaintiff Amar Singh filed a suit for declaration to the effect that he was owner in possession of the land measuring 46 kanals 8 marlas situated in the revenue estate of village Kapahat, Tehsil and District Hoshiapur (for short the “suit land”) on the averments that his father-in-law, Munshi Ram, a retired Patwari, was the owner of 856 kanals 15 marlas of land, out of which he bequeathed the suit land in his favour by executing a Will dated 14.6.1981 for the services rendered RSA No. 1310 of 1984 -2- by him and his wife Raksha Devi, defendant No.4, to said Munshi Ram and the remaining land to all of his four daughters. Munshi Ram died on 19.11.1981 leaving behind four married daughters. It was pleaded that the plaintiff got the mutation entered on the basis of the Will dated 14.6.1981 which was contested by the other heirs and the revenue authorities disbelieving the Will sanctioned the mutation in favour of all the heirs on the basis of natural succession, which necessitated the plaintiff to file the present suit. Upon notice, defendants No.1, 3 and 4 admitted the execution of the Will by Munshi Ram in favour of the plaintiff whereas defendant No.2, one of the daughters of Munshi Ram, contested the same raising a plea that not only the plaintiff and his wife, others had also been serving Munshi Ram. It was pleaded that the Will set-up by the plaintiff was forged, false and invalid as Munshi Ram was of unsound mind for about a year before his death. According to her, the plaintiff was having certain documents regarding civil litigation pending between one Tarlok Chand and her father Munshi Ram, and the Will in question had been fabricated on one of such papers with the connivance of the attesting witnesses and the same was shrouded by suspicious circumstances. From the pleadings of the parties, the following issues were framed by the trial court:- “1. Whether deceased Munshi Ram executed a valid Will in favour of the plaintiff? OPP 2. Whether the plaintiff is entitled to the declaration as prayed for? OPP RSA No. 1310 of 1984 -3- 3. Relief.” The trial court on appreciation of the oral as well as the documentary evidence led by the parties, decided issue No.1 in favour of the plaintiff holding that the deceased Munshi Ram had executed a valid Will in favour of the plaintiff. Under issue No.2, the trial court held the plaintiff entitled to the decree for declaration as prayed for. Accordingly, the trial court vide judgment and decree dated 24.9.1983 decreed the suit of the plaintiff holding him entitled to the decree for declaration that he was the owner in possession of the suit land with a perpetual injunction against the defendant not to interfere in his possession. Feeling aggrieved, defendant No.2, approached the lower appellate court which vide judgment and decree dated 17.1.1984 reversed the findings of the trial court on issue No.1 holding that the Will in question had not been proved. Resultantly, the appeal was allowed and the judgment and decree of the trial court was set aside and the suit of the plaintiff was dismissed. Hence, the present regular second appeal by the plaintiff. Mr. Jaswal, learned counsel for the appellant submitted that the appeal raises the substantial questions of law and made the following submissions. According to him, a) The lower appellate court had taken the suspicious circumstances on assumption and presumption and the findings recorded by the lower appellate court are legally unsustainable as it had not discussed or touched the grounds on which the trial court had recorded the Will, Ex.P1, to be genuine; RSA No. 1310 of 1984 -4- He relied upon the following case law:- “1. Sm. Chinmoyee Saha v. Debendra Lal Saha and others, AIR 1985 Calcutta 349, 2. Ajit Chandra Majumdar v. Akhil Chandra Majumdar, AIR 1960 Calcutta 551, 3. Smt. Indu Bala Bose and others v. Manindra Chandra Bose and another, AIR 1982 SC 133, 4. Alok Kumar Aich v. Asoke Kumar Aich and others, AIR 1982 Calcutta 599.” b) Concluding his argument, the learned counsel urged that admission by defendants No.1, 3 and 4 proves the Will. No appeal was filed by them and, therefore, qua their share, it should have been held to be valid. On the other hand, Mr. Mahajan, learned counsel for the respondents controverting the submissions of Mr. Jaswal contended as under:- a) That the Will has been rightly held to be suspicious by the lower appellate court. The plaintiff, therefore, does not get any share by inheritance of Munishi Ram as he is not the natural heir of Munshi Ram; b) That defendant No.2 claims only 1/4th share to which she is entitled to. She does not claim any further share. Mr. Mahajan relied upon H. Venkatachala Jyengar v. B.N. Thimmajamma and others, AIR 1959 SC 443 to submit that to hold a Will to be genuine or otherwise, it is the conscious of the Court which is RSA No. 1310 of 1984 -5- to prick and once the lower appellate court had on sound reasoning discarded the Will, no reliance should be placed on the said Will. Relying upon the Apex Court judgment in Mst. Sugani v. Rameshwar Das and Another, 2006 (4) RCR (Civil) 319, he urged that if the court on appreciation of evidence has taken one view then in regular second appeal there should be no interference merely because another view is also possible. According to him, the appeal raises no substantial question of law. I have heard the learned counsel for the parties and have perused the records with their assistance. The primary issue for adjudication that arises in this appeal is - whether the Will dated 14.6.1981, Ex.P1, allegedly executed by Munshi Ram in favour of the plaintiff is valid and genuine or not. Section 63 of the Indian Succession Act, 1925 (for short, “the Act”) prescribes the formalities that are required to be fulfilled for execution and attestation of unprivileged Wills. A Will or testament is a declaration in a prescribed manner which specifies the intention of the person executing it with respect to the matters which he wishes to take effect after his death. A perusal of clause (c) of Section 63 of the Act makes it clear that the Will shall be attested by two or more witnesses, each of whom should have seen the testator signing or affixing his mark to Will or has seen some other person signing the Will in the presence and by the direction of the testator and each of the witnesses shall sign the Will in the presence of the testator. The mode of proof of a “Will” has been enumerated under RSA No. 1310 of 1984 -6- Section 68 of the Evidence Act, 1872. According to it, if a document is required by law to be attested, it shall be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive who is capable of giving evidence. The responsibility to prove the due execution of a Will is upon a person who propounds the same and in the absence of any suspicious circumstances, surrounding the execution of the Will, the proof of testamentary capacity to execute the testament together with his signatures thereon, as required by law, is sufficient to discharge the onus. The burden is on the propounder of the Will to dispel any legitimate doubt to the satisfaction of the court whereupon, the court shall accept it to be genuine. The conscious of the court is required to be satisfied in the event of existence of suspicious circumstances. In deciding the question of validity of a Will, it is always the cumulative effect of all the factors that have to be kept in mind while determining the genuineness or otherwise of a Will. It is never one factor or the other in isolation that can help in arriving at a right conclusion. The Apex Court in H. Venkatachala Jyengar's case (supra) while laying down certain principles for adjudging the validity of a Will has in paras 19 to 21 in clear terms observed as under:- “19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has RSA No. 1310 of 1984 -7- already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature RSA No. 1310 of 1984 -8- of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the depositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even RSA No. 1310 of 1984 -9- without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. 21. Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word RSA No. 1310 of 1984 -10- 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.” The Will dated 14.6.1981, Ex.P1, is scribed by Balwant Singh (PW2). Prem-PW3, Kartar Chand-PW4 and Sarwan Singh are the attesting witnesses. Though the Will has been proved as required by law but defendant No.2 had inter alia pointed out the following defects or suspicious circumstances to the trial court:- (a) There was discrepancy in the statement of PW4 Kartar Chand who had not stuck to his earlier statement made before the revenue authority (Ex.D1) where he had stated that the Will was registered when it was not registered on the date of its execution. (b) The testimony of PW3-Prem could not be relied upon being an interested person as he had been obliged by the plaintiff by permitting him to cut Khair trees. (c) The scribe PW2-Balwant Singh had also departed from his statement made before the revenue authorities on earlier occasion and no reliance could be placed on his version. RSA No. 1310 of 1984 -11- (d) The defendants had produced Roshan Lal-DW2 and Budhi Chand-DW3 to establish the mental condition of Munshi Ram at the time of his death. They had deposed that Munshi Ram was not keeping good health and was not having fit state of mind about one year before his death which took place on 19.11.1981. DW2 had even deposed that the plaintiff had given him two blank papers for getting the signatures of Munshi Ram who had after great persuasion signed those blank papers. The trial court after noticing these glaring features concerning the genuineness of the Will had rejected them without any legal basis. When the matter was in appeal, the lower appellate court, took the following to be suspicious grounds and declared it to be invalid:- a) That testator Munshi Ram was a Patwari and literate person who was neither ill nor physically unfit to scribe the Will in his own handwriting especially when he had beautiful hand in Urdu language. Balwant Singh scribe was engaged who was less literate and as per his statement, this was his first and the last Will which was scribed by him; b) The Will was got registered on 8.1.1982 after the death of Munshi Ram. No reasons had been given as to why the same was not registered by Munshi RSA No. 1310 of 1984 -12- Ram during his life time, when he was in walking condition at the time of execution of the Will. The Will could have been got scribed from a regular deed writer at Hoshiarpur which was at a distance of 8 kms. from the village of Munshi Ram and it could have been registered. Though registration of a Will is not mandatory but Munshi Ram being a Patwari knew that the registration of a Will carries more weight than an unregistered Will; c) Will in question has been tampered with at various places. Khasra Nos. 17/2/1, 24/1 and 24/2 and 28/2 are in different ink. The change appears to have been made after the Will was written to suit the convenience of the beneficiary. Munshi Ram was owner of 856 kanals 15 marlas of land whereas 43 kanals 13 marlas was cultivable and by tampering with the numbers most of the cultivable land has been made the subject matter of the Will; d) It remains a mystery as to how the khasra numbers were incorporated in the Will in view of the statement of witnesses PW2 Balwant Singh and PW3 Prem who have deposed that Munshi Ram had no papers giving the details of khasra numbers of the land; e) The plaintiff is husband of one of the daughters of Munshi Ram who had four daughters. The plaintiff had admitted that Munshi Ram had cordial relations RSA No. 1310 of 1984 -13- with all the four daughters. No reason has been given in the Will for excluding other daughters and giving of the property to the husband of one of the daughters. Natural heirs have been excluded without assigning any reason or giving any explanation. After giving my thoughtful consideration to the entire matter, I do not find any infirmity in the findings recorded by the lower appellate court that the circumstances narrated by it create suspicion on the validity of the Will and it cannot be said to be the last testament of Munshi Ram. The findings recorded by the lower appellate court, thus, calls for no interference by this Court in the regular second appeal. However, drawing of a different inference than that of the lower appellate court, upon reappreciation of the evidence, is outside the purview of Section 100 of the Code of Civil Procedure. It is only the perverse findings based on misreading and misappreciation of evidence that can be corrected by this Court in the second appeal. Moreover, the Apex Court in para 25 of Mst. Sugani's case (supra) had laid down that where two inferences are possible on appreciation of evidence, then the conclusion drawn by the lower appellate court should not be disturbed. It has been observed as under:- “It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the RSA No. 1310 of 1984 -14- witnesses accepted by the trial court, the same is no ground for interference in second appeal, when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible. One drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.” Applying the aforesaid principles and yardstick to the facts of the present case, no fault can be found in the findings recorded by the lower appellate court. It may be added here that the trial court had erred in discarding the testimonies of the witnesses produced by defendant No.2 and, therefore, the conclusion derived by it regarding genuineness of the Will had been rightly reversed by the lower appellate court. Suffice it to notice that the judgments relied upon by the learned counsel for the appellant were rendered on the facts of their own cases though the principles of law laid down therein is well RSA No. 1310 of 1984 -15- recognized. The said judgments are of no help or cannot come to the rescue of the appellant in the facts and circumstances of the present case. As recorded above, the Will dated 14.6.1981, Ex.P1, is surrounded by suspicious circumstances and cannot be relied upon. Once a Will has been held to be surrounded by suspicious circumstances and discarded, no benefit can be given to the plaintiff regarding the share of defendants No.1, 3 and 4 who had admitted the execution of the Will. Defendant No.4 is none else but the wife of the plaintiff. Moreover, if the plaintiff had won over two other sisters of defendant No.4 as recorded by the lower appellate court, it was not an honest admission. If defendants No.1, 3 and 4 wanted to give their share of the property to the plaintiff, it could be by way of a registered instrument after paying the requisite stamp duty. No infirmity could be noticed in the judgment and decree of the lower appellate court warranting interference by this Court. In view of what has been stated above, I do not find any merit in this appeal and the same is hereby dismissed. There shall, however, be no order as to costs. December 19, 2008 (AJAY KUMAR MITTAL) gbs JUDGE