Regular Second Appeal No. 3652 of 2011 1 In the High Court of Punjab and Haryana, at Chandigarh Regular Second Appeal No. 3652 of 2011 Date of Decision: 7.9.2011 Santosh ... Appellant Versus Rajinder and Others ... Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Satish Chaudhary, Advocate for the appellant. Kanwaljit Singh Ahluwalia, J. (Oral) The plaintiff having lost in two rounds of litigation has preferred the present regular second appeal. Sher Singh had four daughters namely, Santosh, appellant/plaintiff, Dhano, Satya and Dulari, respondents/defendants No.2 to 4. Defendant No.1 Rajinder is son of respondent/defendant No.2 Dhano. Sher Singh had executed a registered Will dated 15.6.1999 in favour of his grand son Rajinder bequeathing all his estate to him. Lateron, Sher Singh had gifted his entire property to Rajinder, respondent/defendant No.1, vide registered gift deed dated 14.9.1999. Santosh, being daughter of Sher Singh, had filed a suit for declaration to the effect that the gift deed dated 14.9.1999, alleged to be executed by Sher Singh, deceased, in favour of his grand son Rajinder Regular Second Appeal No. 3652 of 2011 2 regarding the land measuring 28 kanals 13 marlas, details and description whereof has been given in the head note of the suit, was the result of undue influence, fraud and misrepresentation upon Sher Singh, deceased and consequently she sought permanent injunction restraining defendant No.1-Rajinder from alienating the suit property. Challenge to the Will dated 15.6.1999 was made in the replication, filed by the plaintiff, after the same was disclosed in the written statement, filed by defendant No.1. Defendants No.3 and 4 being two other daughters of Sher Singh had chosen not to cause appearance and they were proceeded against ex parte. In other words, they had accepted the execution of the Will and the gift deed which were upheld by both the Courts below. Two pertinent questions have arisen before both the Courts below, as to whether the property being an ancestral could be bequeathed or gifted by Sher Singh to the exclusion of his daughters in favour of his grandson defendant No.1 (son of one of his daughter) and another as to whether two documents i.e. Will dated 15.6.1999 and gift deed dated 14.9.1999 are the result of fraud and misrepresentation or was Sher Singh competent being of sound mind to execute these documents. Both the Courts below gave a concurrent findings that the property was the ancestral in the hands of Sher Singh, who expired on 1.10.1999. On that date, the daughters could not succeed to the ancestral property and Sher Singh became absolute owner thereof and was well within his rights to convey the same to male member of the family (grandson) to the exclusion of others. Secondly, the Court relied Regular Second Appeal No. 3652 of 2011 3 upon the witnesses of defendants who were the attesting witnesses to the documents upheld the execution of the documents. Hence, the trial Court had dismissed the suit and the appeal filed by the plaintiff in the lower Appellate Court was also dismissed. In the context of the above said two concurrent findings of fact, this Court shall proceed to notice brief facts of the case. The plaintiff pleaded in the suit that the suit land was the ancestral property of the parties and after the death of Sher Singh on 1.10.1999 this property was to be inherited by his four daughters (plaintiff and defendants No.2 to 4) in equal share. It was further stated that Sher Singh was an old person, who had lost his mental faculty from the last many years as he used to remain ill being a patient of tuberculosis and was unable to think and take good and bad decisions for himself. The plaintiff has further alleged that since she was serving her father but defendants No.1 and 2 in a thought over plan took undue advantage of mental health and got executed a gift deed dated 14.9.1999 in favour of defendant No.1. It was pleaded that the gift deed was never executed by Sher Singh and he never appeared before the Sub Registrar and thus, the same was the result of fraud and in case it is proved that Sher Singh had thumb marked the gift deed then it should be held that the same was the result of misrepresentation as Sher Singh was mentally incapacitated. Upon notice, defendants No.1 and 2 filed a written statement. It is stated therein that Sher Singh was the absolute owner in possession of the property and after his death, on the basis of the registered Will dated 15.6.1999 in lieu of the services rendered by him in Regular Second Appeal No. 3652 of 2011 4 the old age to Sher Singh, he became absolute owner in possession of the property. The defendants, however, admitted the execution of the gift deed dated 14.9.1999. The rest of the averments made in the suit were denied. The plaintiff has filed replication to the written statement filed by defendants No.1 and 2 and also assailed the Will dated 15.6.1999 being a forged and fabricated document. The trial Court, after completion of the pleadings, has framed the following issues:- “1. Whether the gift deed dated 14.9.1999 in respect of the suit land allegedly executed by Sh. Sher Singh in favour of defendant No.1 is wrong, illegal, null and void as alleged in the plaint? OPP 2. Whether plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP 3. Whether Sher Singh has executed a registered Will dated 15.6.1999 in favour of defendant No.1 Rajinder? OPP 4. Whether suit of the plaintiff is not maintainable in the present form? OPD 5. Whether plaintiff being female has no right, title or authority to challenge the Will and gift deed? OPD 6. Whether suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD Regular Second Appeal No. 3652 of 2011 5 7. Relief.” Plaintiff-Santosh herself appeared as PW.3, examined four other witnesses and tendered various documents, whereas Rajinder, defendant No.1, examined DW.1 Ram Kumar Nambardar and DW.2 Sushil Kumar, attesting witnesses of the Will and DW.3 Rakesh Kumar Sharma, Scribe of the gift deed. He has also tendered into evidence the gift deed dated 14.9.1999 as Ex.D1, Will dated 15.6.1999 as Ex.D2 and various other documents. The trial Court has decided issues No. 1, 3 and 5 together. The trial Court held the suit property to be ancestral and relied upon Smt. Dipo v. Wassan Singh and Others AIR 1983 (Supreme Court) 846 to hold as under:- “30...Property inherited from parental ancestors is “ancestral property” as regards the male issue of the propositus, but it is his absolute property and not ancestral property as regards other relations...” The Court further relied upon Bhoop Singh v. Ram Singh Major and Others 1996(1) PLR 26 to hold that if a person inheriting the ancestral property has no son, sons’s son in existence at the time when he inherits the property, he becomes the absolute owner of the ancestral property and he can deal with it as he pleases. In support of the above said legal proposition, the Court drew support from Mulla’s Principles of Hindu Law (15th Addition 289) and came to the conclusion that since Sher Singh was not having any son or son’s son, he became absolute owner of the ancestral property and the daughters could not claim the right over the property on the ground that the same was Regular Second Appeal No. 3652 of 2011 6 ancestral property. The trial Court further upheld the validity of the gift deed Ex.D1 and the Will Ex.D2 taking into consideration the testimonies of DW.3 Rakesh Kumar Sharma, Deed Writer and DW.1 Ram Kumar and DW.2 Sushil Kumar, attesting witnesses to the Will. After examining the evidence at threadbare, the trial Court held as under:- “50. Defendants had to prove the authenticity of both these documents and they have done so by examining six witnesses. There is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of the testator and so when it is propounded or produced before a Court the testator who has already departed the word cannot say whether it is his will or not and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be a legal will and testimony of the departed testator.” The Court further held that the testimonies of DW.1 Ram Kumar and DW.2 Sushil Kumar, attesting witnesses to the Will, aspire confidence. Furthermore, DW.4 Dharam Pal and DW.5 Ram Chander, attesting witnesses to the gift deed Ex.D1 have also proved execution of the document, in categoric terms and aspire confidence and was trustworthy. The above said findings given by the trial Court have been affirmed by the lower Appellate Court. The lower Appellate Court, Regular Second Appeal No. 3652 of 2011 7 regarding the nature of the suit property, gave the following finding:- “19. So far as the nature of the property in the hands of Sher Singh is concerned, it is undisputed fact that he was the last male holder of the property survived by his four daughters. He was not having any son at the time of his death. So the property held by him at the time of his death can be termed as a self acquired property. So he was competent to transfer the property in a manner he likes either by will or gift.” The lower Appellate Court has further held that the plaintiff had also admitted the photograph of Sher Singh and Rajinder on the gift deed which are the registered documents. The lower Appellate Court noticed various arguments raised regarding fraud and misrepresentation and held as under:- “27...As stated earlier, she herself admitted the photograph of Rajender and Sher Singh on the gift deed. It is a registered document. The proceedings were also conducted before the authority who also conducted the enquiry and asked the genuineness of the document from the executant itself. The endorsement made by the Sub Registrar also carries a presumption of truth. The plaintiff failed to prove that Sher Singh was incapable of understanding the right/wrong thing because of his old age and he lost his mental balance altogether. Regular Second Appeal No. 3652 of 2011 8 She has not even pleaded the specific details of undue influence exercised by the defendants upon the deceased.” Regarding the Will, the lower Appellate Court held as under:- “30...The defendants examined the deed writer of the will and the attesting witness of the will to fulfill the requirements to prove the due execution of the will. Sher Singh admittedly survived by four daughters. He did not have even a single son. He held property as his absolute property and therefore, could alienate the same by way of will also. The will also bears the photograph and thumb impression of Suresh. There is nothing on the file that he was suffering from tuberculosis or was bed ridden and mentally incapable to decide between wrong and right. No medical evidence was placed on the file. Rather the evidence placed on the file shows that he remained ill only for two days before his death. The nature of illness as highlighted by the plaintiff that tuberculosis which requires regular medical treatment but no such medical treatment record has been placed on the file. Even the plaintiff herself was not able to name the doctor to whom she has taken him for his medical treatment...” Mr. Satish Chaudhary, Advocate, appearing for the appellant, has submitted that there was no reason for Sher Singh to exclude his Regular Second Appeal No. 3652 of 2011 9 three daughters i.e. plaintiff-Santosh and defendant No.3-Satya and defendant No.4-Dulari and therefore, this Court should hold that the gift deed Ex.D1 and Will Ex.D2 are the result of fraud and misrepresentation. Learned counsel has made valiant efforts to point out various discrepancies for rejecting the testimony of the attesting witnesses to the Will and the gift deed. This Court, in regular second appeal, cannot re-appreciate and do re-appraisal of the evidence. The view formulated by both the Courts below is the one which is possible in the facts and circumstances of the case. Therefore, this Court will not disturb the concurrent findings of fact given regarding the validity of the documents on the ground that the plaintiff’s evidence has been given more credence than the defendants’ evidence, which has received approval of both the Courts below. Thus, no ground is made out to cause interference in the present regular second appeal especially when, during the course of arguments, learned counsel for the appellant has failed to formulate any question of law, much less a substantial one, for consideration of this Court. Hence, there is no merit in the present regular second appeal and the same is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge September 7, 2011 “DK”