Regular Second Appeal No. 1217 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1217 of 2009 Date of decision : January 27, 2011 Usha Rani and others ....Appellants versus Lakhbir Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. SS Narula, Advocate, for the appellants Mr. OP Hoshiarpuri, Advocate, for respondent no. 1 to 3 Mr. Anuj Balian, Advocate, for respondent no. 9 Mr. Sandeep Kumar, Advocate, for respondent no. 11 None for the remaining respondents L.N. Mittal, J. (Oral) By this common judgment, I am disposing of three appeals i.e. RSA Nos. 1217 of 2009 and 1218 of 2009 both titled Usha Rani and others versus Lakhbir Singh and others and RSA No. 1606 of 2009 titled Jaswant Singh versus Lakhbir Singh and others as all these appeals have arisen out Regular Second Appeal No. 1217 of 2009 -2- of single suit. Facts are being taken from RSA No. 1217 of 2009. Dispute relates to the property left behind by Kehar Singh who died on 1.1.1994, allegedly having been murdered. Kehar Singh was unmarried and issueless. Kehar Singh had two brothers namely Mohinder Singh and Mehar Singh and four sisters namely Durga Devi, Champa Devi, Kashmir Devi and Shanti Devi. Plaintiffs are three sons and five daughters of Mohinder Singh whereas defendants are two sons, three daughters and widow of Mehar Singh. Parshotam Singh defendant no. 1 has since died and his legal representatives have preferred RSA Nos. 1217 of 2009 and 1218 of 2009 whereas defendant no. 2 has preferred RSA No. 1606 of 2009. The plaintiffs alleged that Kehar Singh was murdered by defendant no. 1. In the suit, plaintiffs have challenged registered Will dated 2.3.1984 allegedly executed by Kehar Singh in favour of defendants no. 1 and 2 and also sale deeds dated 25.11.1993 and 13.12.1993 regarding 24 kanals land each allegedly executed by Kehar Singh in favour of defendant no. 1 Parshotam Singh. It was alleged that sale deeds were executed without consideration. Kehar Singh never executed alleged Will. Various grounds were raised to challenge the Will and the sale deeds. Defendants contested the suit. While admitting relationship between the parties and the deceased, it was pleaded that defendant no. 1 Parshotam Singh is bonafide purchaser of 48 kanals from Kehar Singh for consideration vide impugned sale deeds dated 25.11.1993 and 13.12.1993 Regular Second Appeal No. 1217 of 2009 -3- validly executed by Kehar Singh. Similarly registered Will dated 2.3.1984 was pleaded to have been validly executed by Kehar Singh in favour of defendants no. 1 and 2. Various other pleas were also raised. Learned Civil Judge (Junior Division), Samrala vide judgment and decree dated 7.8.2001 upheld the Will dated 2.3.1984 but held the impugned sale deeds to be not legal. Since the Will was upheld, the suit was dismissed. Against judgment and decree of the trial court, two first appeals were preferred. One appeal was preferred by Parshotam Singh defendant no. 1 in view of finding of the trial court regarding sale deeds being invalid. The other appeal was preferred by the plaintiffs since Will was upheld by the trial court and the suit was dismissed. Learned Additional District Judge, Ludhiana vide common judgment dated 21.11.2008 disposed of both the said appeals. Finding of learned trial court regarding sale deeds has been upheld by the lower appellate court but finding regarding Will has been set aside and the impugned Will has also been held to be not valid. Consequently, appeal filed by the plaintiffs has been allowed whereas appeal filed by defendant no. 1 (represented by his legal representatives) has been dismissed. Feeling aggrieved, legal representatives of defendant no. 1 have preferred two second appeals (because there were two first appeals) and defendant no. 2 has preferred separate second appeal because lower appellate court has set aside the finding of the trial court regarding Will. I have heard learned counsel for the parties and perused the case file. Regular Second Appeal No. 1217 of 2009 -4- After hearing learned counsel for the parties, I find that following three substantial questions of law arise for determination in the instant second appeal :- 1. Whether finding of the courts below that impugned sale deeds are not legal, is perverse and illegal and is liable to be set aside ? 2. Whether finding of the lower appellate court that impugned Will is not legal, is perverse and illegal and not sustainable in law and is liable to be set aside ? 3. Whether the suit is bad for non-joinder of necessary parties? In so far as first substantial question of law mentioned hereinabove is concerned, there is concurrent finding by both the courts below that sale deeds are not legal. The said finding is supported by cogent reasons and is based on proper appreciation of evidence. The sale deeds are dated 25.11.1993 and 13.12.1993. Kehar Singh died on 1.1.1994 allegedly having been murdered. Criminal case regarding his murder was registered against defendant no. 1 although he stands acquitted in that case. The sale deeds were executed just before the alleged murder of Kehar Singh. No amount of consideration was paid before the Sub Registrar at the time of registration of the sale deeds. Defendant no. 1 alleged that he had paid the sale consideration in advance from time to time, but defendant no. 1 could not even prove his resources to pay the sale consideration of Rs 3,72,000/- for the two sale deeds. Learned counsel for the appellants contended that defendant no. 1 had taken loan of Rs 65,000/- from a firm for which necessary evidence was produced. However, evidence regarding Regular Second Appeal No. 1217 of 2009 -5- amount of Rs 65,000/- taken long before the sale deeds would not depict that defendant no. 1 had paid Rs 3,72,000/- as sale consideration for the two sale deeds to Kehar Singh. Moreover, Kehar Singh was retired Postmaster and was getting pension. Kehar Singh was also owner of the suit land measuring 65 kanals 16 marlas i.e. more than 8 acres and he was unmarried and issueless and consequently income from the said land was more than sufficient for his own needs. DW6 Balbhader Singh examined by defendants to prove sale deeds also admitted that financial condition of Kehar Singh was good. It is, thus, manifest that there was no necessity for Kehar Singh to sell his land through the aforesaid sale deeds to defendant no. 1. Balbhader Singh DW6 (witness of the sale deeds) and Dev Raj DW2 (scribe of the sale deeds) also stated that no part of the consideration was paid in their presence. No receipt regarding advance payment of consideration was also obtained by defendant no. 1. Thus, practically there is no evidence to depict the payment of consideration for the two sale deeds. On the other hand, Kehar Singh was admittedly residing with defendants no. 1 and 2 for about 10 years before the sale deeds. This circumstance would also depict that the impugned sale deeds might have been obtained without consideration. Defendant no. 1 himself admitted that Kehar Singh used to do agricultural work and did not carry on any business. Agricultural income from more than 8 acres land would be more than sufficient for the needs of a single person. In this regard, defendant no. 1 himself admitted that Kehar Singh used to take money of his agricultural produce. It is, thus, manifest that there was no necessity for Kehar Singh to sell his land to Regular Second Appeal No. 1217 of 2009 -6- defendant no. 1. For the reasons aforesaid, concurrent finding recorded by both the courts below regarding invalidity of the impugned sale deeds is upheld. The said finding cannot be said to be perverse or illegal so as to warrant interference in second appeal. Substantial question of law no. 1 as framed hereinabove is accordingly answered against the appellants. Coming to substantial question of law no. 2 relating to impugned Will, defendants have led cogent evidence to prove the said Will. Scribe of the impugned Will had died and therefore another Deed Writer was examined to prove the handwriting of the scribe regarding the Will. Defendants have also examined one attesting witness of the Will namely Prem Singh, Sarpanch. This evidence is sufficient to prove due execution of the Will. There was also sufficient justification for Kehar Singh for executing the Will in favour of defendants no. 1 and 2 because even plaintiffs' witnesses have admitted that Kehar Singh was residing with defendants no. 1 and 2 for ten years before his death. It is not uncommon or unnatural in these circumstances for a person who is unmarried and issueless to bequeath his property in favour of his real nephews with whom he is residing and who are rendering services to him. The Will is, therefore, very genuine and natural. Moreover, the Will is registered one which adds to its authenticity. Testator Kehar Singh remained alive for almost ten years after the execution of the said Will and he never cancelled it nor ever alleged that the Will had not been executed by him or that the Will had been procured by undue influence etc. Regular Second Appeal No. 1217 of 2009 -7- Lower appellate court has set aside the finding of the trial court regarding validity of the Will on three grounds which are patently frivolous and perverse. The first ground taken by the lower appellate court to discard the Will is that the testator was residing with defendants no. 1 and 2 and therefore, they were in a dominating position over the testator. If this ground to discard a Will is accepted, then hardly any Will would stand legal scrutiny. As noticed hereinabove, Will is ordinarily executed in favour of the persons who are serving the testator. In the instant case also, defendant no. 1 and 2 were serving the testator who was residing with them and this was the reason why testator executed the Will in their favour. In fact, this is a material and significant circumstance to uphold the validity of the Will, but by perverse approach, lower appellate court has taken it to be a ground to discard the Will. Lower appellate court has observed that Kehar Singh died under mysterious circumstances as his body was found hanging from a tree and case was initially registered against defendant no. 1 and others although they were acquitted in that case. It was taken to be suspicious circumstance regarding the execution of the Will. The same argument has also been advanced by learned counsel for the appellants before me. However, this circumstance cannot be said to be suspicious circumstance, firstly, because the Will was executed almost 10 years before the alleged murder of Kehar Singh and at the time of execution of the Will, there was nothing suspicious against defendants no. 1 and 2 who were rather serving the testator who was living with them. The Will also cannot be said to be Regular Second Appeal No. 1217 of 2009 -8- ante-dated because it is a registered document. Consequently, alleged murder of testator almost 10 years after the execution of the registered Will cannot be taken to be a suspicious circumstance. Secondly defendant no. 1 stands acquitted in the murder case. Learned lower appellate court also observed that Kasturi Lal one of the attesting witnesses of the Will was President of Cooperative Society of which defendant no. 1 was Secretary and therefore, defendant no. 1 made Kasturi Lal as witness of the Will. Defendant no. 1 also admitted that some case had been registered against Kasturi Lal and his brothers regarding forgery of receipts of Cooperative Society. However, on these grounds, the Will could not be discarded. If some case had been registered against Kasturi Lal in some other matter, it would not mean that Kasturi Lal could not be a competent witness to attest the Will. Moreover, it has also not been mentioned by the lower appellate court as to when the said case was registered against Kasturi Lal i.e. before or after the execution of the impugned Will. Moreover, Kasturi Lal has since died and has not been examined as witness to prove the impugned Will. Consequently, the Will could not be discarded on the ground that Kasturi Lal was conveniently available witness to defendant no. 1. Learned counsel for the plaintiffs contended that there is no reason why plaintiffs no. 1 to 3 who are also nephews of testator Kehar Singh were excluded by executing Will in favour of defendants no. 1 and 2 who are also nephews of the testator. This circumstance also weighed with the lower appellate court to discard the Will. However, reason for Regular Second Appeal No. 1217 of 2009 -9- excluding plaintiffs no. 1 to 3 and for preferring defendants no. 1 and 2 by executing the Will is not far to seek. As noticed hereinabove, defendants no. 1 and 2 were serving the testator Kehar Singh who was residing with them for ten years before his death. Consequently, in view of services being rendered by defendants no. 1 and 2, it was but natural for Kehar Singh to have executed the Will in favour of defendants no. 1 and 2, notwithstanding that the testator also did not have strained relations with the plaintiffs. For the reasons recorded hereinabove, I conclude that impugned registered Will dated 2.3.1984 executed by Kehar Singh in favour of defendants no. 1 and 2 is legal and valid. Finding of the trial court to this effect is fully justified by the evidence on record and is supported by cogent reasons. Finding of the lower appellate court to the contrary is completely perverse and illegal and is based on frivolous grounds and erroneous approach. Accordingly, substantial question of law no. 2 framed hereinabove is answered in favour of the appellants. Now coming to substantial question of law no. 3, it is admitted position as mentioned in paragraphs 14 to 16 of the judgment of the trial court that Kehar Singh had two brothers i.e. Mohinder Singh (father of the plaintiffs) and Mehar Singh (father of defendants no. 1 to 5 and husband of defendant no. 6) and also four sisters. It appears from the record that both the brothers and all the four sisters of Kehar Singh had pre-deceased him. Sons and daughters of brothers and sisters of Kehar Singh would be equally natural legal heirs as per Entry (IV) of Class II of the Schedule to the Hindu Regular Second Appeal No. 1217 of 2009 -10- Succession Act, 1956. It is not disputed that besides plaintiffs and defendants no. 1 to 5 being issues of two brothers of Kehar Singh, all the four sisters of Kehar Singh have also left behind their issues. Durga Devi has left behind two sons; Champa Devi has left behind nine issues; Kashmir Devi has left behind three issues and Shanti Devi has left behind one son. In case of natural or intestate succession, all the issues of four sisters of Kehar Singh would also be entitled to equal share with plaintiffs and defendants no. 1 to 5 in the property of Kehar Singh. However, the aforesaid issues of four sisters of Kehar Singh have not been impleaded as party to the suit. It is correct that no such objection was raised by the defendants in their written statement and therefore, no issue was framed on this aspect. However, at the time of final arguments, an application was moved for dismissal of the suit on this ground. However, even thereafter, plaintiffs did not seek impleadment of issues of sisters of Kehar Singh as party to the lis either in the trial court or in lower appellate court. In their absence, the suit is manifestly bad for non-joinder of necessary parties because issues of four sisters of Kehar Singh are also necessary parties to the suit for adjudication of the dispute raised in the suit. For the aforesaid reasons, substantial question of law no. 3 framed hereinabove is answered in favour of the appellants and the suit is held to be bad for non-joinder of necessary parties. As a necessary upshot of the aforesaid discussion, all the three appeals are allowed to the extent indicated hereinabove and judgments and decrees of the courts below are modified to the extent indicated Regular Second Appeal No. 1217 of 2009 -11- hereinabove and suit filed by plaintiffs/respondents no. 1 to 8 stands dismissed. Cost of adjournment imposed on appellants in two RSA Nos. 1217 of 2009 and 1218 of 2009 on the preceding date have not been deposited. Learned counsel for the appellants undertakes to deposit the same within one week. Allowed to do so. If cost amount is not so deposited, the said two cases shall be listed for this purpose. ( L.N. Mittal ) January 27, 2011 Judge 'dalbir'