R.S.A. No. 1329 of 1992 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1329 of 1992 (O&M) Date of Decision : 12.5.2009 Kirpal Singh & another .......... Appellants Versus Punjab Kaur ( dead ) through L.Rs. ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. M.L. Sarin, Sr. Advocate with Mr. Jaspal Singh, Advocate for the appellants. None for the respondents. **** VINOD K. SHARMA, J. (ORAL) The plaintiff / appellants have invoked the jurisdiction of this Court under Section 100 of the Code of Civil Procedure to challenge the judgment and decree dated 18.5.1992, passed by the learned lower appellate Court, dismissing the suit for declaration and permanent injunction. The case of the plaintiff / appellants was, that originally one Kabal Singh was owner in possession of the suit land, who died on 22.8.1987. Kabal Singh executed a Will dated 10.2.1987, bequeathing the suit property in favour of the plaintiff / appellants, accordingly after his death the appellants became owner in possession of the suit land. The defendant in connivance with the revenue authorities got the mutation of the suit land entered in her favour illegally. It was the case R.S.A. No. 1329 of 1992 2 of the plaintiff / appellants, that mutation has no effect on the rights of the plaintiff / appellants qua the suit land, as the defendant / respondent was not related to the suit property in any manner, nor she came in possession of the suit land. On the basis of alleged mutation the defendant / respondent wanted to alienate the suit property to some other person in order to cause wrongful loss to the plaintiff. The request of the plaintiff / appellants to the defendant / respondent to desist from such act, met with no result, therefore, the plaintiff / appellants sought declaration, that they were owner in possession of the suit land, on the basis of Will executed by Sh. Kabal Singh. It was also the case of the plaintiff / appellants, that mutation sanctioned in favour of defendant / respondent was against law and fact, consequential relief of permanent injunction was also sought restraining the defendant / respondent from alienating the suit property to any person, in any manner. The suit was contested by the defendant / respondent, and the averments made in the plaint were repudiated on each and every fact. It was, however, admitted, that originally deceased Kabal Singh was owner in possession of the suit property, who died on 22.8.1987 issueless and unmarried. The execution of the Will by Kabal Singh was denied. The case set up by the defendant / respondent was, that the Will was forged and fictitious document. The defendant claimed, that she was owner in possession of the suit property on the basis of natural succession. She also raised legal objections regarding locus standi of the plaintiff / appellants to file the suit, as also regarding the form of the suit. The R.S.A. No. 1329 of 1992 3 defendant/ respondent claimed special costs, and prayed, that the suit be dismissed with costs. In the replication the facts alleged in the plaint were reiterated and, that of the written statement were denied. On the pleadings of the parties, the learned trial Court was pleased to frame the following issues :- “1. Whether Kabal Singh executed a valid Will in favour of the plaintiffs ? OPP 2. Whether the plaintiffs are entitled to declaration and injunction prayed for ? OPD 3. Relief.” The learned trial Court was pleased to observe, that inadvertently the onus to prove issue No. 2 was wrongly fixed on the defendant / respondent instead of plaintiffs. The plaintiffs led evidence in support of their case and the defendant / respondent led evidence on issue No.2, as the onus was placed on defendant / respondent. The evidence was also led in rebuttal. The plaintiff / appellant No.1 Kirpal Singh stepped into the witness box as PW-1 and deposed, that deceased Kabal Singh was real maternal uncle of plaintiffs and that the defendant / respondent was his real sister. The relationship was not disputed. It was also not disputed, that Kabal Singh was unmarried and issueless. The case of the plaintiff / appellants was, that they used to render him all services in old age, and further that he came to stay with them at village Gheri Buttar, out of close relation, love and affection the Will was executed on 10.2.1987, vide which he bequeathed the suit property to the plaintiff / appellants. The last rites were also performed by the plaintiffs, at his native village Natheha as per R.S.A. No. 1329 of 1992 4 wishes of the deceased. PW1 testified, that at the time of execution of the Will deceased Kabal Singh was of sound disposing mind, that Kabal Singh did not have much connection with the defendant, who was his real sister. The mutation was said to have been got sanctioned by the defendant / respondent in connivance with the revenue authorities, which was claimed to be against facts and law. Plaintiff / appellants also examined Ajmer Singh as PW-2, who was stated to be personally known to deceased Kabal Singh, who also stated that he died issueless and unmarried. He also deposed in favour of the Will, vide which deceased Kabal Singh bequeathed the suit property in favour of the plaintiff / appellants. The Will Ex. PW2/A was said to have been scribed at the instance of deceased Kabal Singh, who affixed his thumb impression upon the Will after admitting its contents to be correct. He further deposed, that deceased Kabal Singh was of sound disposing mind at the time of execution of Will. Baldev Singh attesting witness was examined as PW-3, who testified, that the disputed Will Ex. PW2/A was executed by deceased Kabal Singh, vide which he bequeathed the suit property in favour of the plaintiff / appellants. He further stated, that Kabal Singh used to reside with plaintiff / appellants at their village Gehri Buttar. In defence, the respondent/ defendant examined one witness Pritam Singh, as DW-1, who was neighbour of deceased Kabal Singh at village Natheha. He stated, that as Kabal Singh died issueless and unmarried, therefore, the defendant / respondent became owner in possession of the suit property being natural successor of deceased Kabal Singh being his real sister. The defendant / respondent herself appeared as R.S.A. No. 1329 of 1992 5 DW-6 and deposed, that deceased Kabal Singh never executed any Will in favour of the plaintiffs. It was also denied, that deceased Kabal Singh resided with the plaintiff / appellants. The disputed Will was said to be false and fabricated document. She claimed to have become owner of the suit property being legal heir of deceased Kabal Singh. She claimed to have performed his last rites. The case of the plaintiffs was, that Will Ex. PW2/A was not surrounded by any suspicious circumstance as stood proved by the attesting witness and the scribe. It was claimed, that plaintiff / appellants became owner in possession of the suit land on the basis of the Will. The defendant / respondent, on the other hand, claimed, that Will was surrounded by suspicious circumstances. It was pointed out, that there was over-writing in word 'two' on the Will. The defendant / respondent also examined an expert witness Sh. Atul Kumar Singla as DW- 5, who after examining the Will, submitted his report Ex. DW4/1. Photographs and negatives were also produced and exhibited. The disputed thumb impression on Will Ex. PW2/A was got compared with the standard thumb impression of deceased Kabal Singh, which appeared on sale deed Ex. D1. The sale deed Ex. D1 was proved by DW-2 Sh. S.K. Garg, Advocate, who scribed the sale deed at the instance of Kabal Singh. The sale deed was further proved by the attesting witness, who appeared as DW- 3. The report of the expert was, that the thumb impression of deceased Kabal Singh on the Will did not tally with the standard thumb impression of deceased Kabal Singh on the sale deed Ex. D-1. Opinion was also to the R.S.A. No. 1329 of 1992 6 effect, that the word 'two' on the Will was outcome of alteration. In rebuttal, the plaintiff examined handwriting expert Sh. N.K. Jain as PW-4, who after examination gave an opinion, that thumb impression of Kabal Singh on sale deed Ex. D-1 exactly tallied with his thumb impression on the Will. He also produced the photographs and negatives along with the report. In view of the fact, that there was difference in opinion of experts, Sh. Dewan K.S. Puri was summoned as Court witness. His son Satwant Puri, appeared as CW1, who gave a categorical opinion, that the disputed thumb impression on the Will did not tally with the standard thumb impression appearing on the sale deed Ex.D1. He proved his report by getting the photographs and negatives exhibited. The learned trial Court, however, held that the alteration in the date of Will did not raise any doubt as the alteration was apparent to bare eye. The learned trial Court was further pleased to hold, that as the Will was scribed by ordinary man, therefore, the cutting thereon did not make the Will to be suspicious. The learned trial Court was further pleased to hold, that even if the alteration was intentional, it made no difference as the altered date i.e. 10.2.1987 and the previous date 10.8.1987, was prior to the death of deceased Kabal Singh. The alteration, therefore, could not benefit the defendant / respondent, in any way. The learned Court held, that as Satwant Puri and Atul Kumar Singla did not have the same opinion with regard to the alteration, therefore, it made no difference regarding validity of the Will. The learned trial Court also held, that in view of the difference of the opinion, between experts it was duty of the Court, to come to right R.S.A. No. 1329 of 1992 7 conclusion. The learned trial Court was of the view, that merely because Satwant Puri had appeared as Court witness made no difference, in view of the report of the expert examined by the plaintiff / appellants. The learned trial Court even went to the extent of saying that thumb impression on sale deed Ex. D-1, was not proved to be that of deceased Kabal Singh. The learned trial Court, therefore, discussed the reports of all the three experts and finally held, that there was nothing unnatural in execution of the Will, therefore, held the Will to be valid. The declaration was, thus, issued that plaintiff / appellants became owner in possession of the suit property, and that the mutations were wrongly entered in favour of the defendant / respondent. The learned trial Court further found the plaintiff / appellants in possession of the suit property. On issue No.2 it was held that plaintiff / appellants were also entitled to injunction. The suit was held to be maintainable. In view of the findings, referred to above, the suit filed by the plaintiff / appellants was decreed. The defendant / respondent preferred an appeal. The learned lower appellate Court was pleased to reverse the findings of the learned trial Court, on issue No.1. The findings recorded by the learned lower appellate Court read as under :- “11. Satwant Puri, Document Expert appeared as CW1 and stated that he examined the disputed thumb- impression Q1 on the un-registered will Ex.PW2/A and compared the same with the specimen thumb impression S1 and S2 of Kabal Singh on the registered sale-deed dated 5-1-1987 and in his opinion the disputed thumb R.S.A. No. 1329 of 1992 8 impression Q1 is not identical with the specimen thumb impression and not of one and the same person and he had seen that there is an alteration in the date of the document which is abnormal and suspicious and the report also bears the signatures of Dewan K.S.Puri and his report. He further stated that he also prepared transparency to show as to how the figure has been altered and the same is Exh. DW1/A. 12. The ld. lower Court has stated in para No.15 of the judgment that for the reasons stated above it must be held that standard thumb impressions have not been clearly proved as that of deceased Kabal Singh and the standard disputed thumb impressions have been examined and compared by different Experts and their opinion is not the same and as such it was held by the lower Court that in these circumstances it is not possible to disbelieve one or the other expert witness and as such it was held that the opinion of the Expert witness has not value. 13. Ld. counsel for the respondent-plaintiffs relied upon AIR 1991 Punjab & Haryana 254 (Suresh Kumar alias Suresh Chand Vs. Mewa Ram son of Kala Ram and others) head-note B which reads as under:- “Evidence Act (1872), S.45-Evidence of Expert witnesses- Experts differing on disputed signatures- Court can itself compare genuine and disputed signatures and come to the conclusion”. Reliance was also placed on AIR 1967 Supreme Court 450 (Srichand Vs. State of Maharashtra(Raghubar Dayal) head-note C which reads as under:- “Evidence Act (1872), S.45-Expert R.S.A. No. 1329 of 1992 9 evidence-whether necessary- Examination by handwriting expert is not necessary in every case of disputed writing and no adverse inference can be drawn for not obtaining expert's opinion.” Further reliance was also placed on 1983 CLJ (C.&Cr.) 75 (Atma Singh Vs. Smt.Guro and others) head-note B wherein it was held as under:- “Registered and unregistered will-effect of- No prejudice can be shown to an unregistered will- The only after effect is that registered will is easy to prove. The will cannot be disbelieved merely because it is not registered.” 14. On the other hand reliance was placed on AIR 1977 Supreme Court 74 (Smt.Jaswant Kaur Vs. Smt.Amarjit Kaur & others) wherein it was held as under:- “In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the Court's conscience and then the true question which arises for the consideration is whether the evidence led by the propounder of the will is such as to satisfy conscience of the Court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.” It has been held by the apex Court of our land in various authorities that execution of the will must be proved beyond suspicious circumstances and if the will is R.S.A. No. 1329 of 1992 10 shrouded by any suspicious circumstance then it becomes the bounden duty of the propounder of the will to dispel those suspicious circumstances. It is also well established principle of law that for proving the validity and genuineness of the will it has to be proved that the testator signed in the presence of the attesting witnesses and at that time the testator was in sound disposing mind and exercised his free will and the attesting witnesses also attested the will in the presence of the testator and the will must not be surrounded by any suspicious circumstances nor the same should be the result of any fraud, undue influence, coercion or mis-representation. 15. At the cost of repetition it is again stated that digit “2” in date 10-2-1987 under the will bore cutting and there is over-writing and the argument that if the said digit “2” had been digit “8” even then the same would not have caused any difference. I do not agree with the said contention because by changing the digit “2” to digit “8” or to any other digit there will be a difference of about six months in the date of execution of the will, which should not be in such a solemn document, like a will, which only speaks after the death of the testator. Again suspicious circumstance is further fortified, as the word “Karda” is written on the alleged thumb impression of Kabal Singh testator of will Exh. PW2/A and had Kabal Singh thumb marked on the will in question after scribing the same then there was no reason or occasion for the word “Karda” being written on the disputed thumb impression Q1 of Kabal Singh on will Exh. PW2/A. Exh. DX is the copy of the Khasra girdawari wherein the cultivation is shown to be that of Panjab Kaur during 1988-89 and onwards. The citation relied upon by the learned counsel for the plaintiff- R.S.A. No. 1329 of 1992 11 respondents does not help them in any way. 16. For the aforesaid reasons and discussion it can safely be concluded that the will in question is shrouded by suspicious circumstances and the propounder of the will i.e. the plaintiffs have failed to remove and satisfactorily explain the said suspicious circumstances and, as such, the findings of the learned lower Court on issues No.1 and 2 are illegal and erroneous and are not sustainable. Consequently for the aforesaid reason, discussion and citations, the appeal of the appellant is hereby accepted and the impugned judgment and decree of the learned lower Court is hereby set aside.” Mr. M.L. Sarin, learned senior counsel appearing on behalf of the appellants contended that the appeal raises the following substantial questions of law :- 1. Whether the reasons recorded by the learned lower appellate Court in reversing the finding of the learned trial Court are perverse ? 2. Whether the judgment and decree passed by the learned lower appellate Court is outcome of misreading of evidence ? 3. Whether the findings recorded by the learned lower appellate Court in accepting the expert evidence of one over the other can be sustained in law ? In support of the substantial questions of law the learned senior counsel for the appellants vehemently contended, that the reasons recorded by the learned lower appellate Court in reversing the findings of the learned trial Court are, on the face of it, perverse and, therefore, cannot be sustained. It is also the contention of the learned senior counsel for the R.S.A. No. 1329 of 1992 12 appellants, that the learned lower appellate Court misread the evidence to record a finding, that the Will was surrounded by suspicious circumstances, thus, not a valid Will. The contention of the learned senior counsel is based on the assertion, that the learned trial Court had rightly held, that the execution of the Will was proved by the scribe as well as the attesting witnesses, therefore, the expert witness was rightly believed by the learned trial Court which could not be set aside by misreading the evidence merely on the basis of presumption, as done by the learned lower appellate Court. The learned senior counsel appearing on behalf of the apepllants further argued, that it was not open to the learned lower appellate Court to have accepted an evidence of one expert though there was a contrary evidence of the other expert. The learned senior counsel also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Major Singh Vs. Rattan Singh (dead) by L.Rs. and others (1997) 3 Supreme Court Cases 546, wherein the Hon'ble Supreme Court has been pleased to lay down as under :- “3. Learned counsel for the appellant has contended that the High Court could not interfere under Section 100, CPC since the suspicious features of the will are questions of facts. The trial Court and the appellate Court had considered the suspicious feature and were not inclined to interfere. It is the duty of the propounder of the Will to establish that the Will was validly executed removing all the suspicious features satisfying the conscience of the Court. In that behalf, the high Court was not justified in interfering in the second appeal as there was no substantial question of law for decision R.S.A. No. 1329 of 1992 13 under Section 100 CPC. It is seen that it is an admitted position that Rattan Singh, on coming to know that his brother was unwell, had gone from Calcutta to see him. After his coming, the Will came to be executed and the execution of the Will also was not disputed. The only question is: whether the Will came to be executed in the normal circumstances . The courts below relied heavily on two suspicious features, namely, the Will was not produced at the earliest point of time, it was produced sometime before the trial. Secondly, the attestators were disbelieved on two grounds, namely, that Hari Singh, one of the attestators had not disclosed that the Will was not executed when the mutation was effected in his presence. The High Court has explained that the mutation was not properly proved and that there was no reason to disbelieve that fact. The High Court had perused the original as well as the photocopy of the will produced in the trial Court in the first instance. The High Court has found that there is no interpolation in the original Will. Therefore, the rejection of the evidence of the attestator, Hari Singh’s evidence was found to be not correct. As regards the other attestator-witness, by name Gurdev Singh, it was disbelieved on the ground that he filed a suit in a litigation against Jeet Singh. It was hardly a ground to disbelieve the evidence of the attestator’s evidence. Under these circumstances, when the courts below had rejected and disbelieve the evidence on the ground that the propounder had not properly discharged his duty, it is the duty of the High Court to consider whether the reasons given by the courts below were sustainable in law. In view of the above reasoning of the trial Court as affirmed by the appellate Court, necessarily the High Court requires to R.S.A. No. 1329 of 1992 14 go into that question to test the reasons. In this perspective, the High Court has rightly gone into that question and found that the reasons given by the courts below are flimsy. Thus there is substantial question of law that has arisen for consideration and the High Court has rightly considered the question. We entirely agree with the High Court.” The judgment relied upon has no application to the controversy raised in present case. On consideration of matter, I find no force in the contention raised by the learned senior counsel for the appellant. In view of the contrary reports by the experts produced by each party it has always been open to the Court to form its own opinion on the basis of evidence on record. In the present case the Court referred the Will to Dewan K. S. Puri, who was a Court witness and once the Court witness had opined, that the Will was not thumb marked by late Kabal Singh and furthermore there was interpolation in the Will, no fault can be found with the findings recorded by the learned lower appellate Court. This Court, in order to satisfy itself, also had a look at the original Will. The word 'two' has been interpolated on word 'nine' and not 'eight', therefore, the learned trial Court was wrong in holding, that the change of date from 'eight' to 'two' did not make any material difference. Even otherwise the learned lower appellate Court rightly placed reliance on the expert witness and furthermore pointed out the suspicious circumstances which were not explained. It was for the plaintiff / appellants to have proved the interpolation in the Will, but no evidence was led to explain as to why there was interpolation of date. R.S.A. No. 1329 of 1992 15 The learned lower appellate Court, therefore, rightly held, that the Will were surrounded