R.S.A. No.2063 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.2063 of 2007 Date of Decision:04.12.2008 Pal Kaur .....Appellant Vs. Sant Kaur and others .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. K.S. Chahal, Advocate for the appellant. Mr. Surinder Garg, Advocate for respondents No.1 to 5. **** JUDGMENT HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 7.6.2007 passed by the Court of learned District Judge, Faridkot, whereby he dismissed the suit of the plaintiff- Pal Kaur by accepting the appeal preferred against the judgment/ decree dated 4.1.2007 rendered by the Court of learned Additional Civil Judge (Senior Division), Faridkot vide which the suit of the plaintiff was decreed for declaration to the effect that she is the owner of 1/10th share, i.e., 8 kanal 5 marlas out of 82 kanal 13 marlas land and is entitled to get the possession of this land and that the mutation No.2165 sanctioned on 17.11.1999 by the Assistant Collector, Ist Grade, Kotkapura in favour of defendants No.1 to 5 is illegall, null and void, inoperative and not binding on the plaintiff with perpetual injunction restraining defendants No.1 to 5 from transferring, alienating in any manner the above-mentioned land to anybody else except the plaintiff. R.S.A. No.2063 of 2007 -2- The facts which form the backdrop of the suit are that the suit land was previously owned by Arjan Singh, father of the plaintiff- Pal Kaur. The defendant- Sant Kaur is the widow, Garib Singh, Sardara Singh, Darbara Singh and Krishan Singh are the sons, Seeto, Rattan Kaur, Raj Kaur and Guddi are the daughters of Arjan Singh, who during his lifetime executed and registered a Will dated 6.5.1997 in favour of Sant Kaur, Garib Singh, Sardara Singh, Darbara Singh and Krishan Singh- defendants. Vide a registered document dated 22.6.1999, he cancelled the said Will. Arjan Singh thus died intestate. The defendants by way of misrepresentation and deceitfully got sanctioned the mutation qua the suit land in their favour on the basis of the aforesaid Will, which is illegal and liable to be set aside. On these allegations, the plaintiff filed suit for declaration to the effect that she is the owner to the extent of 1/10th share in the suit land with consequential relief of perpetual injunction restraining defendants No.1 to 5 from alienating the suit land. In their joint written statement, defendants No.1 to 5 have admitted the execution of the Will dated 6.5.1997 by Arjan Singh since deceased in their favour, but denied that later on, vide writing dated 22.6.1999, the same was cancelled by Arjan Singh. Defendants No.6 to 9 in their separate written statement took similar pleas with the prayer that the suit may be dismissed. The following issues were framed by the learned trial Court:- 1. Whether the plaintiff is entitled to 1/10 share of the suit land? OPP 2. Whether Arjan Singh executed a valid Will dated 06.05.1997 in favour of the defendants No.1 to 5 in a R.S.A. No.2063 of 2007 -3- sound disposing mind? OPD 3. Whether Arjan Singh executed another document dated 22.06.1999 for the cancellation of the Will dated 06.05.1997, if so, its effect, in a position of sound disposing mind? OPD 4. Relief. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court decreed the suit as noticed earlier. Feeling aggrieved therewith, the defendants Sant Kaur, Garib Singh, Sardara Singh, Darbara Singh and Krishan Singh went up in appeal, which was accepted by the learned First Appellate Court vide judgment/ decree dated 7.6.2007 dismissing the suit of the plaintiff. Feeling aggrieved therewith, the plaintiff has preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record as well as the findings returned by both the Courts below with due care and circumspection. Mr. K.S. Chahal, Advocate appearing on behalf of the appellant canvassed at the bar that the respondents- defendants have admitted in candid terms in their respective written statements that the Will dated 6.5.1997 executed by their father, was cancelled later on, vide registered deed dated 22.6.1999, copy of which is Ex.P.1 and thus the learned First Appellate Court has gravely erred in setting aside the judgment/ decree passed by the learned trial Court. To controvert these submissions, Mr. Surinder Garg, Advocate, counsel for the respondents maintained with full force that as surfaces in the cross-examination of Gurbax Singh PW4, the attesting witness of the R.S.A. No.2063 of 2007 -4- alleged cancellation deed, Arjan Singh was an old aged man and he was ailing, unable to move about, hard of hearing and that the Clerk of the Tehsildar by coming come down stairs, had come towards the car in which Arjan Singh was lying and the thumb impression of Arjan Singh was obtained upon the papers by Pal Kaur by holding his hand and the Tehsildar had not read over the contents of the same to Arjan Singh nor the thumb impression/ signatures of Arjan Singh were obtained before the Tehsildar. This evidence absolutely wipes out the execution as well as registration of the cancellation deed by Arjan Singh. Hence, no fault can be found with the findings returned by the learned First Appellate Court. I have well considered the rival contentions. It is the common case of the parties that on 6.5.1997, Arjan Singh had executed and registered the Will in favour of his widow Sant Kaur and his sons Garib Singh, Sardara Singh, Darbara Singh and Krishan Singh defendants. The plaintiff Pal Kaur has put forth that indeed this Will was later on cancelled vide cancellation deed dated 22.6.1999. The only substantial question of law which arises for determination is as to whether the disputed Will was got cancelled by Arjan Singh subsequently. In their joint written statement, the defendants No.1 to 5 who were the beneficiaries under this Will, have come up with the following plea in their joint written statement: “but due to pains and sufferings, Arjan Singh came to Faridkot and executed a cancellation deed with a motive to deter the defendants No.1 to 5, but had no intention to cancel the registered Will, but later on, when he learnt about his disease, he called the defendants No.1 to 5 and witnesses of the cancellation deed and tore it off and cancelled the same and R.S.A. No.2063 of 2007 -5- there he stated that he wanted only to admonish defendants No.1 to 5, so that they may serve him and thereby cancelled the cancellation deed and revived the registered Will.” It is deducible from this plea that as a matter of fact, they have admitted that the registered Will executed and registered in their favour by Arjan Singh was subsequently cancelled by executing and registering the deed. They have propounded that the original cancellation deed was torn off and the Will was revived. This plea of theirs proprio vigore rather substantiate the plaitniff's plea that the Will was later on cancelled. In view of the above plea of the contesting defendants; if for a little while, it is assumed that the original cancellation deed was torn off, it in no manner, enhances the cause of the beneficiaries. As a rule of thumb, the counter- part of the registered document is also retained by the Sub- Registrar / Joint Registrar in his office. The cancellation deed was not rendered in-effectual merely because if its original was destroyed though there is no cogent, convincing and clear evidence in this behalf. It does not stand to the logic that the Will would have been revived by merely tearing off the cancellation deed. If the testator Arjan Singh had later on changed his mind and had brought to bear to do away with the registered cancellation deed, copy of which is Ex.P.1, he by all probabilities would have executed and registered a fresh Will in favour of his wife and sons. Obviously, the learned counsel for the respondents indeed has left no stone unturned in making much capital out of the cross-examination of Gurbax Singh PW4, the attesting witness of the deed vide which the Will was cancelled. Of course, the facts pointed out by the learned counsel for the respondents do surfaces in the cross-examination of Gurbax Singh PW4, but it is apt to be R.S.A. No.2063 of 2007 -6- borne in mind that in his examination-in-chief tendered by way of affidavit Ex.PW4/A, he has solemnly affirmed that the cancellation of Will was then produced before the Sub-Registrar, Faridkot where again the Sub-Registrar, Faridkot read over the contents of the cancellation of the Will and explained to Arjan Singh in presence of myself and Hardial Singh Nambardar and that Arjan Singh put his thumb impression on the endorsement of the cancellation of the Will and that I and Hardial Singh, Numberdar also signed the endorsement of the cancellation of the Will at the instance of Arjan Singh and in the presence of Arjan Singh and Sub-Registrar Faridkot and that I identify my signatures on the endorsement of the cancellation of the Will and Hardial Singh, the other attesting witness and that the endorsement on the Will is Ex.P1/A. He has further solemnly affirmed that “at the time of execution and registration of the cancellation of the Will dated 22.6.1999, Arjan Singh was of sound disposing mind and executed document without any fear and with his free consent and will and that vide Ex.P.1 Arjan Singh cancelled the registered Will dated 6.5.1997 executed in favour of defendants No.1 to 5.” The infirmities pointed out from his cross- examination cannot be given precedence over the above discussed evidence tendered by this witness in the form of affidavit. It is not to be lost sight of the fact that his affidavit was tendered in evidence on 11.11.2004 whereas he was subjected to cross-examination on 21.4.2005 which is ostensibly after about more than five months. This witness is none else, but the Munshi (Clerk) attached to Shri J.S. Brar, Advocate. During this interregnum, the possibility of his being wooed by the beneficiaries cannot be ruled out. In civil matters, the Court is to go by preponderance of probabilities. It would be putting too much premium on the cross- R.S.A. No.2063 of 2007 -7- examination of this witness to hold that the original of Ex.P1 was not registered in a desired manner. The testimony of an attesting witness is not conclusive and the fate of a document is not at the mercy of the attesting witnesses. The principle is well settled that when the evidence of the attesting witness is vague, doubtful or even conflicting upon some material point, the Court may take into consideration the circumstances of the case and judge from them collectively whether the requirements of the Statute were complied with. In other words, the Court may, on consideration of the other evidence and the circumstances of the case, come to the conclusion that their recollection is at fault, that their evidence is of a suspicious character or that they are willfully misleading the Court. When that is the case, the Court may disregard the testimony of the attesting witness and pronounce in favour of the document. Section 114 of the Indian Evidence Act, 1872 lays down that “The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to common course of natural events, human conduct, public and private business, in their relation to the facts of the particular case.” Illustration (g) appended to this Section reads “that judicial and official acts have been regularly performed.” In view of this illustration, it has to be presumed that Arjan Singh had put in his appearance before the Sub-Registrar, who had read over the contents/ recitals in the cancellation deed and after admitting the same to be correct, he had thumb marked the same in the token of their correctness. The cross- examination of Gurbax Singh (sic.) is of suspicious character. Seemingly, he willfully made an endeavour to mislead the Court. Palpably, he has blown hot and cold in the same breath. It would be begging the question to R.S.A. No.2063 of 2007 -8- say on the basis of his cross-examination that the things did not take place in the required manner. Consequently, the Court has to pronounce in favour of the original of Ex.P.1. Accordingly, the substantial question of law is determined. At the fag end of his cross- examination, Garib Singh DW4, defendant- one of the beneficiaries has testified that “I do not know if my father had got cancelled the Will executed by him during his lifetime vide cancellation deed dated 22.6.1999.” Ostensibly, he has not specifically denied the execution and registration of the cancellation deed dated 22.6.1999. In view of the preceding discussion, the judgment/ decree dated 7.6.2007 passed by the Court of learned District Judge, Faridkot is hereby set aside and the judgment/ decree dated 4.1.2007 rendered by the Court of learned Additional Civil Judge (Senior Division), Faridkot is restored. Of course, having regard to the facts and circumstances of the case, the parties are directed to bear their own costs. December 04, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes