IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.1184 of 1982 (O&M) Date of decision: 6.10.2009 Shanti Gir Chela Mahant Bhairon Gir Chela Baba Vabhut Gir -----Appellant Vs. Sadhu Gir Chela Raj Gir (dead) through his LR ----Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL Present:- Mr. Sarwan Singh, Senior Advocate with Mr. SC Pathela, Advocate and Mr. N.S.Rapri, Advocate for the appellant. Mr. Sarjit Singh, Senior Advocate with Ms.Shikha Sharma and Mr. Simranjeet Singh, Advocate for the respondent. Adarsh Kumar Goel, J. 1. Plaintiff-appellant has preferred this second appeal against dismissal of his suit for possession based on Will dated 3.5.1970, Ex.P2 and second Will dated 18.11.1970, Ex.P3 executed in his favour by late Bhairon Gir, Mahant of Dera Sarup Puri in District Bathinda. RSA No.1184 of 1982 (O&M) 2. Case of the plaintiff is that Bhairon Gir was Mahant of Dera in question, who executed Wills Exs.P.2 and P.3 in his favour. He died on 29.12.1970. Possession of the property belonging to the dera was illegally taken by defendant Sadhu Gir, who was disciple of Mahant Raja Gir. 3. The defendant contested the suit, disputing the execution of Will dated 3.5.1970 as well as Will dated 18.11.1970 and stating that he was in possession of suit property in his capacity as a disciple of late Bhairon Gir. His being disciple of Mahant Raja Gir of Dera at Village Angol, was no bar to his being Mahant of Deras in question also. The trial court framed following issues:- “1. Whether Mahant Bhairon Gir deceased was owner of the property in dispute? 2. Whether plaintiff is Chela of Mahant Bhairon Gir deceased? If so, its effect? 3. Whether Mahant Bhairon Gir executed a valid will dated 18.11.1970 in favour of the plaintiff? If so, its effect? 4.Whether the written statement has been properly verified, if so, its effect? 5. Whether the suit is not maintainable in view of section 92 of CPC? 6. Whether the necessary parties have not been joined? 2 RSA No.1184 of 1982 (O&M) 7. Whether plaintiff is entitled to the possession of suit property? 7A. Whether the suit has been correctly valued for the purpose of court fee and jurisdiction? OPP. 8. Relief. 4. The material issues were decided against the appellant and the suit was dismissed. The decree of the trial court has been affirmed by the lower appellate court. Relevant observations of the lower appellate Court, rejecting the will set up by the plaintiff, are as under:- “Siri Kishan (PW1) has stated that he has scribed numerous documents at the behest of Mahant Bhairon Gir in the latter’s life time and that all those documents bore his signatures and not thumb mark. In fact, the earlier will dated May 3, 1970 (Exh.P2), according to the plaintiff-appellant, bears his (Mahant Bhairon Gir) signatures. And it is in his (plaintiff-appellant) evidence that he (Mahant Bhairon Gir) thumb marked the Will (Exh.P3). Scribe witness (Siri Kishan PW1) has given out that the testator was weak, that his hands were trembling and that therefore on his (scribe) advice he (testator) appended his thumb-mark thereto (Will Exh.P3). True that a testator may execute a Will either by signing it or by making his mark on it and that the fact that a person who can sign his name makes a mark would not effect its (will) validity. But, in 3 RSA No.1184 of 1982 (O&M) Gulab Khan Imam Khan etc. v. Amin Mohammad Shah Fakir etc., AIR 1926 Bombay 355, i.e. the authority cited by Mr. Malhotra at the Bar, it has been ruled that if a person who can sign his name makes his mark instead, then the evidence with regard to the execution of the Will would unnecessarily have to be scrutinized with great care. Siri Kishan (PW1) has given out that the will (ExP.3) was scribed in the court compound at Phul on November 19, 1970. Shanti Gir (plaintiff-appellant PW7) has disclosed that Mahant Bhairon Gir had been ill for seven/eight days before his death, that earlier thereto he had grown weak and that prior to his death he had remained confined to bed for three/four days. Sub Registrar Ram Kishan Pandhi (PW5) has averred that the will (Exh.P3) was put up to him at the dera and that the testator was then lying on the cot. Endorsement bearing his (Sub Registrar) signatures on the will (Exh.P3) shows that it was put up before him on November 18, 1970 i.e. the day on which it was written. A reasonable inference is that the Will in question was written three or four days earlier to his (Mahant Bhairon Gir) death. And he died on December 29, 1970. His death entry has not been put in evidence. But his date of death is mentioned in the revenue mutation (Exh.P7). Thus, a legitimate suspicion is that it is highly doubtful that the Will (Exh.P3) was written or executed on November 18, 1970. Sub Registrar Ram Kishan 4 RSA No.1184 of 1982 (O&M) Pandhi (PW5) needless to say, was a responsible officer of the State Government. But it appears that in the discharge of his public duties as Sub Registrar, he did not show the sense of responsibility expected of him. So is manifest from his statement in the cross examination that he did not remember as to whether the Will (Exh.P3) was put up to him at the Dera or at his office. Also, that evasive and non-committal statement of his was made after he had stated a little earlier that the Will (Exh.P3) was produced before him at the dera and that, when he went thereto (Dera), the testator was lying on the cot. In the context, it may be added that Pritam Chand (PW2) did give out in his statement dated December 8, 1979 that the Will (Ex.P.3) was written in the presence of the Tehsildar. (his statement dated September 8, 1979) was recorded in the trial court of Mr. M.M.Aggarwal after Mr. Iqbal Singh had remanded the suit to him for de novo finding on issue No.2). And the Tehsildar was Mr. Ram Kishan Pandhi (PW5). Obviously, that statement of the marginal witness Pritam Chand (PW2) coupled with the shifting stances adopted by the Sub Registrar witness (Mr. Ram Kishan Pandhi) confirms the suspicion that the Will in question (Exh.P3) was not written on November 18, 1970. Again Pritam Chand (PW2) has stated that the portion “D to D” consists of the endorsements (Exh.P3/A and Exh.P3/B) under his (Sub Registrar) signatures. But the latter (Sub 5 RSA No.1184 of 1982 (O&M) Registrar) had deposed that those endorsements were not in his hand though the same were written at his dictation. Indeed, bare perusal of these endorsements (Exh PW/A and Exh.P3/B) in light of the cross examination made on the Sub Registrar (Ram Kishan Pandhi PW5) reveals that the registration of the Will (Exh.P3) was made in a most perfunctory manner. As such, the usual dictum, namely that the registration of a Will is indicative of the disposing mind of the testator loses all relevance in relation to the document in question (Will Exh.P3). 15. Siri Kishan (PW1), Pritam Singh (PW2) and Gurdial Singh (PW3), in their respective statements dated April 19, 1973, June 7, 1973 and July 20, 1973 (before remand) have stated that Mahant Bhairon Gir appointed Shanti Gir (plaintiff-appellant) and his Chela in accordance with rites/ceremonies. But as to what those rites/ceremonies were, they chose to remain silent. Nor pleadings in the plaint disclose the nature/character of the requisite rites/ceremonies in the matter of appointment of the Chela. But in the respective statements of these witnesses, as were made in the trial court (Mr. M.M.Aggarwal) after remand, performance of rites/ceremonies such as cutting of hair (Choti) of Shanti Gir (plaintiff- appellant), rubbing of Bhabuti on his (Shanti Gir) forehead, putting string of beads around his neck, his touching the feet of Mahant Bhairon Gir, the latter’s 6 RSA No.1184 of 1982 (O&M) blessings showered on him and the distribution of Badana has been spoken to. Undoubtedly, these witnesses materially improved on their earlier statements given before remand, in the trial court (Mr. Ramji Dass Singla). It is indicative of the degree of their interestedness in the cause of the plaintiff-appellant (Shanti Gir). Neither Pritam Chand (PW2) nor Gurdial Singh (PW3) was believer in the professed faith of Bhek of Mahant Bhairon Gir. Rather, Gurdial Singh (PW3) has averred that Shanti Gir had arranged the gathering in which Mahant Bhairon Gir appointed him the Chela. Siri Kishan (PW1) could not state as to whether or not Shanti Gir was present at the time of the execution of the unregistered Will (Exh.P2). But Gurdial Singh (PW3) has stated that he (Shanti Gir) was present there then. He himself (Shanti Gir PW7) has deposed that Mahant Bhairon Gir signed the Will (Exh.P2) in his presence. It is in evidence of these witnesses that besides them, numerous persons were present when he (Shanti Gir) was appointed Chela and the Will (Exh.P2) was executed. The Will (Exh.P2) too bears the attestation of a number of persons in addition to Pritam Chand (PW2) and Gurdial Singh (PW3). But, except them two, no other signatory thereof has been put in the witness box as his (plaintiff-appellant) witness. However, two of them namely Hazura Singh (DW6) and Inder Singh (DW7) have come in the witness box to state that the document (Exh.P2) was 7 RSA No.1184 of 1982 (O&M) not executed by Mahant Bhairon Gir in their presence and that they appended their attestation thereto at the instance of Raman Nand at the latter’s dera. 16. The contention of Shanti Gir is that gathering of forty/forty five persons was called at the dera at the instance of Mahant Bhairon Gir and that in the gathering he appointed him his Chela subsequent to which, on that very day, the Will (Ex.P2) was executed by him (Mahant Bhairon Gir) in his favour. But, curiously enough, no independent person from Giri sect or Bekh was called on the occasion of his appointment as the Chela. Raman Nand was his (Mahant Bhairon Gir) brother and was relation of Shanti Gir. Case of Sadhu Gir is that the documents (Exh.P2 and Exh.P3) were brought into existence at the instance of Raman Nand so as to usurp the dera for him (Shanti Gir). It is not disputed that Raman Nand was a vaid of repute. And the trend of the cross examination on the witnesses of the palitniff- appellant (Shanti Gir) indicates that he enjoyed influence in the private and official-dom. Raman Nand (PW6), according to his evidence, is the Shree Mahant of ten/twelve Deras including the Dera in question. His evidence shows that he used to visit Mahant Bhairon Gir at the dera. And it is strange that, on the occasion of the appointment of Shanti Gir as his (Bhairon Gir) Chela, Shree Mahant Raman 8 RSA No.1184 of 1982 (O&M) Nand (PW4) too was not invited. No doubt, Shree Mahant Raman Nand (PW4) has stated that Mahant Bhairon Gir told him that he had adopted Shanti Gir as his Chela in accordance with the rites and had given to him Chola. But his oral evidence in that behalf, on the given facts in the case in hand does not hold ground. He too was well known to Raman Nand who was brother of Bhairon Gir. And little wonder that Shree Mahant Raman Nand (PW4) also is an interested witness. It may be added that Shri Mahant Raman Nand (PW4) has not disclosed as to what the rites/ceremonies governing the appointment of a Chela in the Giri Sect or Bekh were. To cap it all, Shanti Gir (PW7) has nowhere stated that the rites/ceremonies such as cutting of hair, rubbing of Bhabuti, wearing of string of beads around the neck, accepting of chola, distribution of badana etc., were observed or performed on the occasion when Mahant Bhairon Gir appointed him as his Chela. 17. Lastly, it is the last Will, as in law, prevails, obviously the execution of the Will (Exh.P3) tanta- amounted to cancellation or revocation of the Will (Exh.P2). Nor as to the execution/validity of the will dated May 3, 1970 (Exh.P2) specific issue was drawn up. And the execution of the will (Exh.P3) was shrouded in suspicious circumstances to dispel which the propounder- legatee (Shanti Gir) has failed to adduce cogent evidence. 9 RSA No.1184 of 1982 (O&M) Xx xxx x xxxxx xxx 20. It is in evidence that Sadhu Gir (defendant) lived at the dera for a number of years in the life time of Mahant Bhairon Gir, that he used to collect alms from the local inhabitants and bring them as offerings to Mahant Bhairon Gir at the dera and that ever since his (Mahant Bhairon Gir) death he has been in possession of the suit property. Also, it is in evidence that Shanti Gir used to live at the dera of Raman Nand and that he still lives at that dera which is now under the Mahantship of his sister’s son i.e. son of Arjan Dass. Further Sadhu Gir (defendant) has adduced evidence to show that Mahant Bhairon Gir, in his life time had appointed him as his Chela and that he is the successor Mahant of the dera. Nor it is established from the evidence adduced on record that Sadhu Gir could not be the Chela of two Gurus or that he cannot be the Mahant of two deras. Evidence of Shree Mahant Raman Nand (PW4), in the context in hand, is of little consequence since he has cited no authority in support of his statement, namely, that one person cannot be Mahant of two deras or the Chela of two Gurus. Moreover, he is an interested witness. Be that as it may. Fact remains that mere infirmity in the title of Sadhu Gir (respondent) who admittedly is in possession of the suit property will not help Shanti Gir (appellant). It is settled law that plaintiff must succeed on his own legs and that the 10 RSA No.1184 of 1982 (O&M) infirmity, if any, in the case of the defendant cannot be pressed into service in his (plaintiff) cause.” 5. I have heard learned counsel for the parties and perused the record. 6. Main contention raised on behalf of the appellant is that Wills dated 3.5.1970 and 18.11.1970 were duly proved and should have been accepted and the findings of the courts below being erroneous, substantial questions of law arise for consideration. Learned counsel for the appellant formulated the substantial questions of law as under:- “1. Whether the plaintiff/appellant has been validly appointed Chela of Bhairo Gir vide letter dated 3.5.1970 (Ex.P2) which has been duly proved but wrongly ignored by the learned courts below? 2. Whether the Will dated 18.11.1970 (Ex.P3) executed by Bhairo Gir is legal and valid and whether fixing of thumb impression instead of signing and whether the registration of Will is perfunctory and whether it can be termed as suspicious circumstances? 3. Whether the lower appellate Court has misread the pleadings of the parties where the parties have not disputed the facts, whether it still needs to be proved? 11 RSA No.1184 of 1982 (O&M) 4. Whether the succession to the office of Mahant is from Guru to Chela? 5. Whether the lower appellate court can reverse the findings arrived by the trial court without meeting the reasoning given by the trial court? 7. Learned counsel for the defendant-respondent opposed the submission and supported the findings of the courts below and submitted that no substantial question of law arises for consideration and thus, no interference was called for in second appeal under section 100 of the CPC. 8. Main question for consideration is whether the Will dated 18.11.1970 set up by the plaintiff could be rejected and whether reasons given by the courts below are perverse. 9. A perusal of the observations quoted above itself shows that various reasons have been given by the lower appellate Court for not accepting the Will including that the testator was weak, his hands were trembling and he had appended thumb mark instead of his signatures, though he could sign. There was contradiction about the place of execution of the Will. The endorsement was not in the hands of Sub Registrar. There was no acceptable evidence about any ceremonies for appointment of disciple. The evidence with regard to appointment of disciple led at later stage of the case 12 RSA No.1184 of 1982 (O&M) was not reliable. No independent person from the Gir sect of the fraternity was called at the time of appointment of the disciple. 10. Even though, the Will is registered one and the scribe and witnesses have been examined, at best two views may be possible about authenticity of the will being established. This being a matter of appreciation of evidence and two courts having concurrently recorded finding of fact that execution of Will was surrounded by suspicious circumstances, the issue raised cannot be held to be substantial question of law. 11. The appeal is dismissed. October 6, 2009 (Adarsh Kumar Goel) ‘gs’ Judge 13