RSA No.1883 of 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1883 of 1991 Date of Decision: 26.03.2009 Jora Singh & Ors. ..Appellants Vs. Sukhdev Singh & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Kanwaljit Singh Sr. Advocate, with Ms.Prachi Sharma, Advocate, for the appellants. Mr.Amarjit Markan with Mr.Amit Kumar Garg, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. This regular second appeal is directed against the judgments and decree dated 17.2.1988 and 21.3.1991 passed by the learned courts below dismissing the suit for declaration filed by the plaintiff/appellants. RSA No.1883 of 1991 2 The plaintiffs filed a suit for declaration that they along with defendant No.4 are the owners in possession of half share of the land measuring 279 kanals 2 marlas as detailed in the plaint on the basis of Will dated 12.3.1979 executed by Banta Singh, previous owner. It was also pleaded that the decree dated 30.9.1985 in favour of the defendants was not binding on them. Consequently, relief of permanent injunction was sought restraining the defendant/respondents from taking possession of the suit land or from alienating it. The suit was brought on the pleadings that Banta Singh son of Chuhar Singh was the uncle of plaintiffs and defendant No.4 and was owner of half share in the suit land. He died on 17.9.1985 issueless and without wife. Plaintiffs and defendant No.5 used to serve him and he executed a Will in their favour on 12.3.1979. The plaintiffs claimed that they along with Sadhu Singh, defendant No.4 used to cultivate the land during his life time and they were in possession of the land of Banta Singh deceased. Defendants filed a suit against Banta Singh on 12.9.1985 in the court of Sub Judge First Class, Barnala. On 20.9.1985 they produced some other man in place of Banta Singh in the court and got filed written statement admitting the claim of the plaintiffs in the suit. The man also made a statement in the court and the suit was decreed on 30.9.1985. Banta Singh was said to have died on 17.9.1985 and therefore, the question of appearance of Banta Singh in the court on 20.9.1985 did not arise. Decree was said to have been obtained by fraud and therefore, was claimed to be nullity in the eye of law and not binding on the plaintiffs. Mutation was also said to be not binding on the plaintiffs. RSA No.1883 of 1991 3 The suit was contested by the defendants wherein relationship as well as execution of the Will by Banta Singh was admitted but it was averred that Banta Singh revoked the said Will on 28.2.1985 vide registered cancellation deed while he was of sound disposing mind. Banta Singh executed a Will dated 17.8.1988 voluntarily in favour of defendants No.1 to 3 and on that account defendants No.1 to 3 are the legal representatives of Banta Singh and therefore, entitled to succeed to his estate. It was denied that Banta Singh died on 17.9.1985 and it was averred that Banta Singh deceased himself appeared in the court of learned Sub Judge First Class, Barnala on 20.9.1985 and submitted written statement and got recorded his statement in the court. Decree was, thus, claimed to be legal and valid. Since latter Will dated 12.3.1979 was revoked by Banta Singh on 28.2.1985, therefore, the same has no effect. Objection was also raised that the plaintiffs had got no locus standi to file the suit and plea of non-joinder of necessary parties was also raised. After filing the replication, the learned trial court was pleased to frame the following issues:- 1. Whether Banta Singh, deceased, executed a valid will in favour of the plaintiffs and defendant No.4 on 12.3.1979? OPP 2. Whether the will dt. 12.3.79 was rescinded by Banta Singh vide revocation deed dated 28.2.1985? OPD 3. Whether Banta Singh deceased, executed a valid will in favour of defendants No.1 to 3 on 17.8.1985? OPD 4. Whether Banta Singh died on 17.9.1985? OPD RSA No.1883 of 1991 4 5. If issue No.4 is proved, whether the decree dated 30.2.1985 is null and void and is not binding on the plaintiffs? OPP 6. Whether the suit for declaration is maintainable? OPD 7. Whether the plaintiffs have no locus standi to file the present suit? OPD 8. Whether the suit is bad for non-joinder and misjoinder of necessary parties? OPD 9. Relief. In view of the admission made by the defendants in the written statement issue No.1 was decided in favour of the plaintiff/appellants and it was held that the deceased had executed valid Will in favour of plaintiffs and defendant No.4 on 12.3.1979. Even otherwise, the Will was proved by examining the subscribe and the attesting witnesses who proved the due execution of the said Will On issue No.2, on appreciation of evidence i.e. the attesting witnesses as well as the Will and in view of the report of Shri K.S.Puri, Document Expert, it was held that the cancellation deed was duly signed by Banta Singh deceased and thus, this issue was decided in favour of the defendants and it was held that the Will dated 12.3.1979 was rescinded by Banta Singh vide revocation deed dated 28.2.1985. Issues No.3 and 4 were taken up together. On appreciation of oral and documental evidence on record learned trial court was pleased to hold that Banta Singh deceased executed a Will Ex.D.1 dated 17.8.1985 in favour of defendants No.1 to 3. The learned courts also held that Banta RSA No.1883 of 1991 5 Singh had not died on 17.9.1985 as claimed by the plaintiff/appellants. On issue No.5 learned trial court was pleased to hold that the decree dated 30.9.1985 was not binding on the plaintiffs for want of registration. On issue No.6 the learned trial court held that the suit for declaration was maintainable. Issues No.7 and 8 were decided against the defendants having not been pressed. Consequently, the suit was dismissed. Learned lower appellate court while affirming the findings on all the issues reversed the finding on issue No.5 vide which it was held that collusive decree was not nullity or non est and it conveyed good title in favour of decree holder. Learned counsel for the appellants submits that this appeal raises the following substantial questions of law for consideration of this court:- 1. Whether the finding of the learned courts below on issue No.2 holding that the Will dated 12.3.1975 was rescinded by Banta Singh vide revocation deed is liable to be reversed in view of Section 70 of the Indian Succession Act? 2. Whether the findings of the learned courts below on issues No.3, 4 and 5 are the outcome of misreading of evidence and thus, perverse and liable to be set aside? 3. Whether the decree dated 30.9.1985 is null and void on RSA No.1883 of 1991 6 account of death of defendant prior to passing of the decree? Mr.Kanwaljit Singh, learned senior counsel appearing on behalf of the appellants in support of the substantial questions of law referred to above has contended that the findings of the learned courts below on issue No.2 holding that the Will dated 12.3.1975 stood rescinded by Banta Singh is contrary to Section 70 of the Indian Succession Act which reads as under:- “70. Revocation of unprivileged Will or codicil.-- No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.” The contention of the learned senior counsel was that in the present case no evidence was led to show the revocation by leading evidence in consonance with Section 63(c) of the Succession Act and therefore, the finding on issue No.2 deserves to be reversed. However, on consideration of the matter, I find no force in this contention. The will dated 12.3.1975 has been revoked by way of registered cancellation deed. Once the will or codicil can be revoked by burning, tearing, or otherwise destroying, it cannot be said that provisions of Section RSA No.1883 of 1991 7 63 (c) of the Indian Succession Act is to be read into section 70 to prove the revocation. The revocation deed has been proved in accordance with law and therefore, the substantial question of law is answered against the appellant/plaintiffs. On other substantial questions of law learned senior counsel for the appellants contends that the judgments and decree of the learned courts below holding the Will dated 17.8.1985 to have been proved is the outcome of misreading of evidence on record. In support of the contention, learned senior counsel appearing on behalf of the appellants vehemently contended that the Will propounded by the defendant-respondents was surrounded by suspicious circumstances which remained unexplained. The suspicious circumstances according to learned senior counsel appearing on behalf of the appellants which stood unexplained is that it was in the evidence that Banta Singh was confined to bed and therefore, the possibility of having executed the Will cannot be accepted. It is also the contention of learned senior counsel that the Will dated 17.8.1985 is unregistered document which creates a suspicion as earlier Will dated 12.3.1975 was by way of registered Will. It is also the contention that the circumstances referred to above coupled with the fact that the defendant-respondents got a consent decree in their favour leave no manner of doubt that the Will was not a genuine document. Finally the contention is that it was admitted case in evidence that one of the beneficiaries had accompanied the excecutant of the Will which is a suspicious circumstance. It is also the contention of Mr.Kanwaljit Singh, learned senior RSA No.1883 of 1991 8 counsel appearing on behalf of the appellants that the decree dated 30.9.1985 was forged and fictitious document and has been wrongly upheld by the learned courts below. It is the case of the appellants that Banta Singh died on 17.9.1985 whereas the decree is dated 30.9.1985, thus, void having been passed against a dead person. learned senior counsel appearing on behalf of the appellants also referred to the statements of DW 7 as well as Gurdev Singh to contend that it was admitted case that Resham Singh who was beneficiary under the Will was present when the Will was executed. He also referred to the statements of the attesting witnesses to contend that there are discrepancies in the statements and would rather show that the attestation of the Will was not proved on record. By referring to the statement of PW 6 who stated that Banta Singh was confined to bed the learned senior counsel appearing on behalf of the appellants referred to the statements of DW 6, DW 7 as well as DW 15 to contend that the statements made by these witnesses have been misread by the learned courts below in recording the findings. However, this contention of Mr.Kanwaljit Singh, learned senior counsel cannot be accepted as the plaintiffs by making reference to these statements were only trying to raise a point that if the statements are read in the way plaintiff/appellants want to read then the findings recorded by the learned courts below cannot be sustained. This plea cannot be accepted as this court cannot reappraise the evidence to come to a different conclusion when concurrent finding of fact has been recorded. It is not disputed that, in fact, the attesting witnesses RSA No.1883 of 1991 9 have supported the Will and proved its due execution. Rather the reading of the cross-examination of the witnesses on which strong reliance was placed by the plaintiff/appellants would show that the attesting witnesses were not subjected to any cross-examination with regard to the due execution of the Will. Learned senior counsel for the appellants placed reliance on the judgment of this court in the case of Gurcharan Singh & Ors. Vs. Angrez Kaur and another 2008 (4) RCR (Civil) 178 and the judgment of this court in the case of Balbir Singh Vs. Kashmir Singh and Ors. 2004 (3) PLR 35. In the case of Gurcharan Singh & Ors. Vs. Angrez Kaur and another (supra) this court was pleased to observe that non- examination of attesting witnesses who were alive and the fact that the Will contains false statement with regard to the status of the testator and also that the beneficiaries were strangers is suspicious circumstance and that fraud vitiates all acts. However, none of these situations arise in the case in hand. In the case of Balbir Singh Vs. Kashmir Singh and Ors. (supra) this court was pleased to lay down that doubts about continuous illness of the testator prior to death, when the death of the testator is the next day and the active participation by the beneficiary and exclusion of natural successors without any reasons are strong suspicious circumstances and burden lies on the propounder to dispel these suspicion. This judgment again has no relevance. On consideration of the matter, I do not find that the RSA No.1883 of 1991 10 authorities relied upon by the learned senior counsel for the appellants have any relevance to the questions raised. In the present case except for the statement of one of the PWs there was no material about the illness of the testator nor Will being unregistered document can be said to be suspicious circumstance as is sought to be contended. Except for the presence of the beneficiary no evidence was brought on record qua his participation in the execution of the Will to claim that the Will was surrounded by suspicious circumstances. This court in Biru Ram (Deceased) through LRs Vs. Barkha Ram alias Barkat 1997 (1) RCR (Civil) 545 has been pleased to hold that mere presence of beneficiary at the time of execution of the Will is no ground to hold that he prevailed upon the Will of the testator nor non-examination of one of the attesting witnesses can be said to be fatal. Again this court in the case of Smt.Pritam Kaur and ors. Vs. Chanan Singh & Ors. 1985 (2) CLJ (C.& Cr.) 40, has been pleased to lay down that mere presence or payment by legatee of his share of expenses cannot be said to be taking part in the execution of the Will. It was further laid down that non-registration of the Will cannot be a suspicious circumstance to the due genuineness of the Will. The contention raised by the learned counsel for the appellants that suspicious circumstances stand unexplained cannot be accepted. The next contention of the learned senior counsel for the appellants is that the decree could not be said to have transferred the title in favour of the defendant-respondents as the decree required registration as the family settlement as claimed in the suit was not proved. Rather the RSA No.1883 of 1991 11 defendant-respondents admitted in cross-examination that no family settlement was entered into. In support of this contention reliance was placed on the judgment of this court in the case of Biru Vs. Nanhi 2007 (3) RCR (Civil) 810 and the judgment of this court in the case of Rajni Bajaj & Ors. Vs. Ram Piari 2006 (1) RCR (Civil) 153, laying down that the consent decree amongst strangers conveying first time right and title in the property of more than Rs.100/- is inoperative in the absence of registration. Reliance was also placed on the judgment of Hon'ble Supreme Court in the case of K.Raghunandan & Ors. Vs. Ali Hussain Sabir & Ors. 2008 (3) RCR (Civil) 699 laying down that if a right is created by a compromise decree or is exhausted, it requires compulsory registration. Mr.Amarjit Markan, learned counsel appearing on behalf of the respondents, on the other hand, by placing reliance on the judgment of Hon'ble Supreme Court in the case of Kulwant Kaur Vs. Gurdial Singh Maan (dead) by L.Rs. And others AIR 2001 SC 1273 contended that the findings recorded by the learned courts below on appreciation of evidence though erroneous cannot be disturbed in the regular second appeal. It is only where the findings stand vitiated on the wrong test on the basis of assumption and conjectures and resultantly there is an element of perversity involved therein that the High Court will be within its jurisdiction to deal with the issue. Thus, the contention of the learned counsel for the respondents is that in the absence of finding of perversity this court in exercise of powers under section 100 of the Code of Civil Procedure cannot interfere with the findings of facts. . Learned counsel for the respondents thereafter, placed reliance RSA No.1883 of 1991 12 on the judgment of this court in the case of Som Dev and Ors. Vs. Rati Ram and Anr. 2006 (4) RCR (Civil) 303 laying down that the title to property which is acquired by family arrangement the decree based thereon does not require registration. Learned counsel for the respondents also placed reliance on the judgment of this court in the case of Dhan Raj & Anr. Vs. Saatpal & Anr. (2008-4) PLR 65 to contend that when the decree is based on the admitted claim and on the basis of admission and the said decree is not challenged on the ground of fraud etc. the same is to be held good and valid decree and cannot be ignored simply for want of registration. Finally, reliance was placed on the judgment of this court in the case of Smt.Parmeshwari and Ors. Vs. Smt.Hans Kaur and Ors. 2007 (4) RCR (Civil) 250 to contend that the decree based on family settlement does not require registration. This view finds support from the judgment of the Hon'ble Supreme Court in the case of Bachan Singh Vs. Kartar Singh & Ors. 2002 (3) RCR (Civil) 495. It is pertinent to mention here that it is not open for the court to go into the merit of the decree and to find out whether the averments made in the pleadings on the basis of which the decree was passed are correct or wrong. Therefore, the contention of the learned counsel for the appellants that it was not family settlement, cannot be sustained. Once the factum of family settlement was admitted by the judgment debtor it has to be presumed to be correct. In view of the facts and circumstances of the case, it cannot be held that the decree required registration. The view that the decree passed on the family settlement does RSA No.1883 of 1991 13 not require registration also finds support from the judgment of this court in the case of Baant Singh Vs. Lakhbir Singh & Ors. 2005 (2) RCR (Civil) 677; Jai Lal Vs. Chhattar Singh & Ors. (2005-I) PLR 585 and Amin Chand & Ors. Vs. Sukhbir Singh 2008 (4) RCR (Civil) 894. It was lastly contended by the learned senior counsel for the appellants that the decree having been passed against the dead person was null and void. The contention of the learned senior counsel was based on the admitted fact that Bant Singh died on 23.9.1985, whereas the decree was passed on 30.9.1985. This plea of the learned counsel for the appellants also cannot be accepted as order 22 Rule 4 (4) stands substituted by way of High Court amendment which reads as under:- “(3) Where within the time limited by law no application is made under sub-rule (I) the suit shall not abate as against the deceased-defendant and judgment be pronounced notwithstanding the death and shall have the same force and effect as it had been pronounced before the death took place.” (ii) In rule 4 the following shall be inserted as sub-rules (4), (5) and (6) namely:- “(4) If a decree has been passed against a deceased- defendant a person claiming to be his legal representative may apply for setting aside the decree qua him and if it is proved that he was not aware of the suit or that he had not intentionally failed to make an application to bring himself on the record, the Court shall set aside the decree upon such RSA No.1883 of 1991 14 terms as to costs or otherwise as it thinks fit. (5) Before setting aside the decree under sub-rule (4) the Court must be satisfied prima facie that had the legal representative been on the record a different result might have been reached in the suit. (6) The provisions of section 5 of the Limitation Act, 1963 shall apply to application under sub-rule (4).”--(11-4-1975).” In view of the substituted Rule decree passed merely after the death of Banta Singh could not be said to be bad as contended. For the reasons stated above substantial questions of law are answered against the appellant/plaintiffs and in favour of the defendant/respondents. Consequently, this appeal is dismissed and the judgments and decree passed by the learned courts below are upheld but with no order as to costs. 26.3.2009 (Vinod K.Sharma) rp Judge