IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.745 of 2006 Date of decision: 5th September, 2011 Surinder Kumar and others … Appellants Versus Ram Dass and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sanjay Gupta, Advocate for the appellants. Mr. Parveen K. Kataria, Advocate for respondent No.1. Mr. Om Pal Sharma, Advocate for respondents No.4 to 8. KANWALJIT SINGH AHLUWALIA, J. Plaintiffs having lost in two rounds of litigation have approached this Court by instituting present regular second appeal. Bansi Lal was married to one Parmeshari Devi. From this wedlock, five sons namely Surinder Kumar, Gian Dass plaintiffs; and Ram Dass, Gurbaksh Chand and Satpal defendants along with two daughters namely Krishna Devi and Bimla Devi were born. Krishna Devi and Bimla Devi were earlier impleaded as defendants to the suit, but later-on, on an application moved they got themselves transposed as plaintiffs. The entire controversy in the present appeal revolves around the estate of Bansi Lal, which was in the form of agricultural land situated in village Mawa Kaholan, Tehsil Amb, District Una, Himachal Pradesh and the suit land situated in village Badla, District Hoshiarpur, Regular Second Appeal No.745 of 2006 Punjab. For answering the controversy, both the courts below have also determined the validity of Will dated 31st January, 1968 proved on record as Ex.DW6/A. Both the courts below have upheld the Will Ex.DW6/A made by Bansi Lal, whereby the land situated in village Badla (suit land) was bequeathed to the extent of 3/5th share to Parmeshari Devi-wife and to the extent of 2/5th share to one son namely Ram Dass. As per the Will, share of the land was granted to Parmeshari Devi for her lifetime only and after her death it was to devolve upon four sons namely Surinder Kumar, Gurbaksh Chand, Gian Dass and Satpal in equal share i.e. 3/20th share each. It will be pertinent to mention here that Bansi Lal testator of the Will had not given the share, which had to devolve from Parmeshari Devi to Ram Dass defendant as he was already given 2/5th share in the suit land. Furthermore, the land situated in Himachal Pradesh went to all the five sons in equal share. In the above context, it will be necessary to give gist of the facts. Surinder Kumar, Gian Dass, Krishana Devi and Bimla Devi sought declaration to the effect that they are joint owners in possession of 4/7th share of the suit land, details and description whereof were given in the head-note of the plaint. They further sought a decree of permanent injunction as a consequential relief restraining defendant No.1 from alienating more than 1/7th share out of the suit land. It was pleaded that Bansi Lal, father of the parties, owned and possessed agricultural land in Mawa Kaholan, Tehsil Amb, District Una, Himachal Pradesh and the suit land in village Badla, District Hoshiarpur, Punjab. The suit property along with the land situated in Himachal Pradesh was 2 Regular Second Appeal No.745 of 2006 a Joint Hindu Coparcenery property of Bansi Lal. The suit property is still joint and Bansi Lal died intestate. It was further pleaded that plaintiffs No.1 and 2 were in service and were out of the village at the time of death of their father in the year 1968. Mutations of the estate of Bansi Lal in both the villages were sanctioned behind their back and plaintiffs No.3 and 4, i.e. the married daughters, were residing in the houses of their in-laws. It was averred that mutation of the land situated in Himachal Pradesh was rightly sanctioned by the revenue authorities in favour of all the natural heirs of Bansi Lal while mutation of the suit land at village Badla was wrongly sanctioned in favour of plaintiff No.1 and Parmeshari Devi, mother of the parties, and the wrong entries made in the revenue record came into the knowledge of the plaintiffs only in the month of January, 1994 when defendant No.1 disclosed that as per the revenue record he had more share in the suit land than the other heirs of Bansi Lal. It was claimed that the plaintiffs are owners in possession of the entire suit land to the extent of 4/7th share and they have been enjoying the produce of the suit land according to their 4/7th share. Upon issuance of notice of the suit, defendant No.1 to 3 filed written statement, in which they stated that at the time of sanction of the mutation regarding the estate and inheritance of Bansi Lal, plaintiffs and Parmeshari Devi were present and they were fully aware and in knowledge of the mutation regarding the estate of Bansi Lal, as the same was entered into and sanctioned on the basis of a registered Will dated 31st January, 1968. It was averred in the written statement that as per the Will, defendant No.1 Ram Dass became owner in possession of the land in village Badla to the extent of 2/5th share and the remaining 3/5th share was mutated in the name of Parmeshari Devi, mother of the 3 Regular Second Appeal No.745 of 2006 parties. While the land at village Mawa Kaholan was mutated as per the Will in the name of Parmeshari Devi. The plaintiffs used to reside with Parmeshari Devi till her death and they were fully aware that she is owner of the land to the extent of 3/5th share of village Badla and owner of the land of village Mawa Kaholan as per spirit of the Will for her lifetime. It was further pleaded that Parmeshari Devi appointed plaintiff Gian Dass as her general attorney vide General Power of Attorney dated 24th July, 1981 for the purpose of management and control of the land situated at village Badla and he continued to manage and control the estate of Parmeshari Devi at village Badla. Thus, he was fully aware about the Will and also of the fact that Parmeshari Devi has been recorded in the revenue record as an owner of 3/5th share. Therefore, it was pleaded that the plaintiffs are barred, estopped and precluded from filing the suit by their own acts, conduct, admission and acquiescence. A further stand was taken in the written statement that after the sanction of mutation regarding the estate of Parmeshari Devi, plaintiffs and defendants No.2 and 3 were managing and controlling their property i.e. 3/20th share each and acting upon the said mutation entries plaintiff Gian Dass mortgaged his share of the land in village Badla to the extent of 3/20th share, which was in consonance with the Will and thus, this fact also leads to the inference that he was aware of the Will and sanction of mutation. Defendants No.6 to 10, who after transposition of two daughters as plaintiffs were treated as defendants No.4 to 8, had taken a plea that on the basis of the Will, Ram Dass and Gurbaksh Chand became owners and they had sold the suit land to them. Therefore, they not only defended the sale made in their favour by defendants No.1 to 3 4 Regular Second Appeal No.745 of 2006 but also the Will on the basis of which defendants No.1 to 3 had succeeded to the estate of Bansi Lal. It was further pleaded that Gian Dass was fully aware of the Will dated 31st January, 1968 and sanction of mutation on the basis thereof, as he raised a loan of Rs.15,000/- from Oriental Bank of Commerce of village Jallowal after mortgaging the land measuring 21 Kanals 8 Marlas in the year 1987. The trial Court after conclusion of the pleadings had drawn the following issues: “1. Whether the plaintiffs are owners in possession of 2/7 share of land as detailed in head note of the plaint? OPP 2. Whether the plaintiffs are entitled to the permanent injunction restraining defendant No.1 from alienating 1/7th share? OPP 3. Whether the plaintiffs have no locus-standi to file the suit? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the suit is barred by time? OPD 6. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD 7. Whether the suit is bad for mis-joinder of necessary parties? OPD 8. Relief.” Parties to the suit led their evidence. In the present appeal, a definite stand was taken by defendants No.1 to 3 that the original Will made by Bansi Lal at the time when mutation in favour of Parmeshari Devi was to be sanctioned, was in possession of Gian Dass plaintiff No.2. Initially, plaintiff Surinder Kumar had appeared as PW-1. 5 Regular Second Appeal No.745 of 2006 Defendants examined eight witnesses and thereafter, in rebuttal plaintiffs examined Ashok Kumar as PW-2, Fateh Chand as PW-3, Shammi Arry as PW-4 and plaintiff No.2-Gian Dass appeared as PW-5. Thereafter, by way of additional evidence, defendants also examined Arvind Sood, Handwriting and Fingerprints Expert as DW-9. In rebuttal to the additional evidence, plaintiff-Surinder Kumar again appeared in the witness box as PW-1 and also examined Sukhjinder Singh as PW-6 and Onkar Chand as PW-7. The trial Court had taken issues No.1 and 2 together. It relied upon the testimony of Kapur Singh DW-6, marginal witness of the Will and Harvinder Devi DW-1, Registry Clerk, who brought the register regarding registration of the Will dated 31st January, 1968 registered on 5th February, 1968. She also proved a certified copy of the Will attested by Vijay Kumar Sharma, Sub Registrar. Sri Kishan DW-2, Deed Writer proved entry No.122 in his deed writing register regarding the Will made by Bansi Lal. The trial Court held that both the parties have examined handwriting and fingerprints experts and both the experts have deposed in favour of the respective parties, which had engaged them. The Court further held that the executant of the Will, i.e. Bansi Lal had given 3/5th share to Parmeshari Devi for her lifetime only and after her death this property devolved upon the remaining sons except Ram Dass in equal shares, as Ram Dass was given 2/5th share in the suit land at village Badla as per the Will Ex.DW6/A. The trial Court further held that two sons of Parmeshari Devi namely, Gurbaksh Chand and Satpal, who were arrayed as defendants No.2 and 3, had accepted the Will and the fact that Ram Dass was given more share in the suit land at village Badla. Taking the evidence and various circumstances into 6 Regular Second Appeal No.745 of 2006 consideration, the trial Court decided issues No.1 and 2 against the plaintiffs and in favour of the defendants holding that the plaintiffs are not entitled to declaration and permanent injunction prayed for. Issues No.3 and 4 were also decided in favour of the defendants and against the plaintiffs as the Court held that the plaintiffs have failed to prove that they are owners in possession of the suit land on the basis of inheritance and natural succession. Issue No.5 was decided in favour of the plaintiffs and against the defendants and it was held that the suit of the plaintiffs was well within the period of limitation. Issues No.6 and 7 were not pressed by the defendants and they were decided in favour of the plaintiffs. After recording the above said findings, the trial Court had dismissed the suit. Aggrieved against the judgment rendered by the trial Court, the plaintiffs had filed an appeal. The lower appellate Court affirmed the findings given by the trial Court and held as under: “17. Now we have to see as to whether the Will in question is proved on record. On behalf of the defendants, DW-1 Harvinder Devi, Clerk from the office of Sub Registrar, DW-2 Shri Kishan, Deed-writer, scribe of the Will and DW-6 Kapur Singh one of the attesting witnesses of the Will have been examined. Their deposition is to the effect that the executant Bansi Lal in the sound disposing mind, with his free Will got scribed the Will dated 31.1.1968 which was read over and explained to the executant who admitted the same to be correct and put his signatures in the presence of both the attesting witnesses and the attesting witnesses attested the Will in the presence of the executant. However, the defendants have not placed on record the original Will and only its copy was placed on record which was exhibited as Ex.DW6/A. The criticism on 7 Regular Second Appeal No.745 of 2006 behalf of the plaintiffs was that ground for permission to lead secondary evidence was not made out because the original Will had not shown to be in existence nor its loss had been proved.” The lower appellate Court further held that the original Will was produced after the death of Bansi Lal, i.e. at the time of sanction of mutation Ex.DW5/A and furthermore, on the basis of mutation entered in pursuance of the Will, Gian Dass had executed the mortgage in consonance with the revenue record. The Court further held as under: “20. In view of the above discussion, it can be safely concluded that on behalf of the plaintiffs, not only the execution of the Will in question was not challenged for such a long duration but also the said Will in question is admitted as the plaintiff Gian Dass and defendants No.2 and 3, had acted in a manner which leads to the only conclusion that they accepted the Will of their father to be genuine document.” The lower appellate Court had dismissed the appeal. Mr. Sanjay Gupta, Advocate appearing on behalf of the appellants, has relied upon ‘Rani Purnima Debi and another v. Kumar Khagendra Narayan Deb and another’ AIR 1962 Supreme Court 567 to contend that mere registration of the Will is not sufficient to remove suspicion around it. Counsel has urged that the very fact that Bansi Lal had given land in equal share to his sons in Himachal Pradesh should be sufficient to discard the Will and so far as the suit property is concerned, there was no reason for Bansi Lal to give 2/5th share of the land to Ram Dass defendant No.1. 8 Regular Second Appeal No.745 of 2006 There is no doubt in the proposition that even a registered Will can be ignored when it is surrounded by suspicious circumstances. In the present case, both the courts below have given a concurrent finding of fact that the Will indeed was executed by Bansi Lal. The courts below have placed reliance upon the testimony of Kapur Singh DW-6; Harvinder Devi, Registration Clerk DW-1 and the Scribe namely Sri Kishan DW-2. Another argument raised before me by counsel for the appellants is that a photostat copy of the Will cannot be relied upon. The defendants had examined Registration Clerk along with the register of Wills. They have also brought on record certified copy of the Will as EX.DW6/A, which has been duly proved by the marginal witness of the Will, i.e. Kapur Singh DW-6. A definite stand was taken by the defendants that the original Will was with Gian Dass, who was appointed as an attorney by Parmeshari Devi, mother of the parties. In examination in-chief, Surinder Kumar PW-1 has also stated that “At the time of death of Sh.Bansi Lal, Ram Dass used to look-after the land in dispute in V.Badla, and all the legal heirs of Bansi Lal used to get the profits of the suit land according to their shares.” Therefore, in these circumstances, if Bansi Lal has given a little more share of the land at village Badla to his son Ram Dass, it cannot be termed as a suspicious circumstance, especially when two brothers namely, Gurbaksh Chand and Satpal have accepted the Will. Therefore, this Court is of the opinion that counsel for the appellants, during the course of arguments, has failed to formulate any question of law much less a substantial one, which warrants interference by this Court to set aside the well reasoned concurrent findings of fact returned by both the courts below. 9 Regular Second Appeal No.745 of 2006 Hence, there is no merit in the present appeal and the same is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE September 5, 2011 rps 10