R.S.A. No. 2421 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2421 of 1984 Date of Decision: 23.07.2010 Amarjit Singh son of Chanan Singh, caste Jat, resident of village Ghasitpur, Tehsil Tarn Taran, District Amritsar (now deceased) represented through his legal representatives:- (i) Smt. Dalbir Kaur widow; (ii) Sh. Iqbal Singh son; (iii) Sh. Jaspal Singh son; (iv) Smt. Ravinder Kaur daughter; (v) Sh. Hardayal Singh son. ... Appellants Versus 1. Gurmej Singh son of Gurbax Singh son of Hakam Singh, Caste Jat, r/o village Ghasitpur, Tehsil Tarn Taran, Distt. Amritsar. 2. Chanan Singh son of Jhanda Singh, Caste Jat, r/o village Ghasitpur, Tehsil Tarn Taran, Distt. Amritsar. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. I.K. Mehta, Senior Advocate, with Mr. M.S. Kohli, Advocate, for the appellants. Mr. Harpreet Singh Giani, Advocate, for the respondents. R.S.A. No. 2421 of 1984 2 SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 17.12.81, rendered by the Court of Subordinate Judge IInd Class, Tarn Taran, vide which, it decreed the suit of the plaintiff, and, the judgement and decree dated 30.04.84, rendered by the Court of Additional District Judge, Amritsar, vide which, it dismissed the appeal. 2. The facts, in brief, are that, Basant Kaur widow of Santa Singh, resident of village Ghastipur, Tehsil Tarn Taran, District Amritsar, was a co-sharer of the land, in dispute, as per jamabandi for the year 1972-73. It was stated that, during her life time, she was being looked after by the plaintiff, being the son of her brother. It was stated that, Basant Kaur, executed a registered Will dated 02.04.62, in favour of the plaintiff (now respondent No. 1), bequeathing her entire property, including the land, in dispute. It was further stated that, as such, after the death of Basant Kaur, the plaintiff, became the exclusive owner of the land, in dispute. It was further stated that, however, defendant No. 1/appellant (now deceased) son of her brother-in-law (Devar) and represented by his legal representatives, in connivance with his father-in-law Sawan Singh, resident of village Bhullar, and, another person namely Jaswant Singh, fabricated a false Will dated 16.05.73, in his (defendants No's. 1) favour, in respect of the land, in dispute, on the basis whereof, he claimed his ownership. It was further R.S.A. No. 2421 of 1984 3 stated that, thereafter, a criminal case, was got registered, against defendant No. 1 (now deceased), Sawan Singh, his father-in-law and Jaswant Singh. It was further stated that, both the Wills, were sent, to the Finger Prints Bureau, Phillaur, wherefrom a report was received, to the effect, that the Will dated 16.05.73, set up by the defendant, did not bear the thumb impressions of Basant Kaur, deceased. It was further stated that, defendant No. 2, was also a co-sharer, in the joint khata of the land, in dispute. The defendants, were many a time, asked by the plaintiff, to admit his claim, over the land, in dispute, but, to no avail. Ultimately, a suit for declaration, was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the plaintiff, had no right to file the suit. It was further pleaded that the suit had not been properly valued, for the purposes of Court fee and jurisdiction. It was further pleaded that the Court had no jurisdiction to entertain and try the suit. It was stated that, Basant Kaur, deceased, was being looked after by defendant No. 1, during her life time. It was further stated that Basant Kaur, deceased, being satisfied with his services, executed the Will dated 16.05.73, in his favour, bequeathing her entire property, including the land, in dispute. It was further stated that, as such, defendant No. 1, became the exclusive owner of the land, in dispute. It was further stated that, the plaintiff, had no concern, whatsoever, with the land, in dispute. It was further stated that, the Will dated 02.04.62, was nothing but a forged R.S.A. No. 2421 of 1984 4 document. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether deceased Basant Kaur, executed a valid Will, in favour of plaintiff on 12.04.62 (infact 02.04.62)? OPP (ii) Whether said Basant Kaur executed a valid Will, in favour of defendant on 16.05.73. If so its effect? OPD (iii) Relief. 5. After hearing the Counsel for the parties, and, on going through the record of the case, the trial Court, decreed the suit of the plaintiff. 6. Feeling aggrieved, an appeal was preferred, by defendant No. 1, which was dismissed, by the Court of Additional District Judge, Amritsar, vide judgement and decree dated 30.04.84. 7. Still feeling dissatisfied, the instant Regular Second Appeal, was filed by defendant No. 1/appellant. 8. During the pendency of appeal, the appellant, died, and, is now being represented through his legal representatives. 9. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellants, submitted that the original Will dated 16.05.73, which was executed, in favour of Amarjit Singh, appellant (now deceased), was lost/mis-placed/misappropriated, from the judicial record. He further submitted that, an application, was R.S.A. No. 2421 of 1984 5 moved, before the first Appellate Court, under Order 41 Rule 27 of the Code of Civil Procedure, for summoning the counter-part of the Will dated 16.05.73, from the office of the Sub-Registrar, copy whereof, is exhibit D1, executed, in favour of Amarjit Singh by Basant Kaur, and, getting compared the questioned thumb-impressions of Basant Kaur, thereon, with her standard thumb-impressions, on any other document, so as to definitely come to the conclusion, as to whether, the same, was executed, by her, in his favour, or not, but, the same, was illegally dismissed, by the first Appellate Court. He further submitted that, since the Will, was not in possession of the appellant, as the same, was taken, by the Police, in a criminal case, got registered, against Amarjit Singh, he could not produce the same. He further submitted that comparison of the thumb-impressions of Basant Kaur, on the counter- part of the Will, being kept by the office of the Sub-Registrar, in his record, with her standard thumb-impressions, was essential, for the just decision of the case, and, would have also enabled this Court, to pronounce the judgement, in a satisfactory manner. He further submitted that, even otherwise, the Will, copy whereof, is D1 dated 16.05.73, was executed, by Basant Kaur, in favour of Amarjit Singh, but, the Courts below, on misreading and misappreciation of evidence, and law, on the point, discarded the same. He further submitted that the judgements and decrees of the Courts below, being illegal and perverse, are liable to be set aside. 11. On the other hand, the Counsel for the respondents, R.S.A. No. 2421 of 1984 6 submitted that the application, under Order 41 Rule 27 of the Code of Civil Procedure, filed by the appellant, therein, for summoning the counter-part of the Will dated 16.05.73, from the office of the Sub- Registrar for comparison of the questioned thumb-impressions of Basant Kaur thereon with her standard thumb-impressions, was rightly declined. He further submitted that, the thumb-impression, alleged to have been affixed, by Basant Kaur, in the register of the deed writer, was got compared with her standard thumb-impressions, on receipts P3 dated 30.05.56, and, P4 dated 08.07.56, and, it was found, that the same, did not tally with each other. He further submitted that, it was, under these circumstances, that a criminal case, was got registered, against Amarjit Singh and others, for forging and fabricating the Will dated 16.05.73. He further submitted that, in the criminal case, even the report of the Government Handwriting and Finger Prints Expert, was received, that the questioned thumb-impressions of Basant Kaur, on the Will dated 16.05.73, did not tally with her standard thumb-impressions, on P4 and P5. He further submitted that, on the other hand, a legal and valid registered Will dated 02.04.62, exhibit P1, was executed, by Basant Kaur, in favour of Gurmej Singh, respondent No. 1, and, he became the owner of the property, in dispute, on the basis thereof after her death. He further submitted that the judgements and decrees of the Courts below, being legal and valid, are liable to be upheld. 12. The dispute, in this case, is, with regard to the execution, legality and validity of the Will dated 02.04.62, P1, allegedly executed R.S.A. No. 2421 of 1984 7 by Basant Kaur, in favour of Gurmej Singh, and, the Will dated 16.05.73, copy whereof, is D1, allegedly executed by said Basant Kaur, in favour of Amarjit Singh. It is evident, from the record, that a criminal case, was got registered, by Gurmej Singh, against Amarjit Singh and others, for forging and fabricating the Will, copy whereof, is D1, in which, ultimately, they were discharged. In that criminal case, the original Will, was taken into possession, as is evident, from the criminal file, which was summoned. In the statement of Sulakhan Singh Lehri, deed writer, who appeared, as DW1, in this case, file of criminal case, in which, the original Will dated 16.05.73, was lying, was produced. After seeing that original Will, in that file, he stated that, the same, was scribed by his grand-son, who had already expired. Thereafter, the Will, was lost/mis-placed/misappropriated, as is evident, from the letter dated 29.04.84, written by the then Sub Judge IInd Class, Tarn Taran, to Sub Judge 1st Class, Phillaur. The criminal file, which was summoned, and, had been received, also did not contain the Will dated 16.05.73. It means that the original Will, once taken by the Police into possession, in the criminal case, no longer remained in possession of Amarjit Singh. Under these circumstances, the application, under Order 41 Rule 27 of the Code of Civil Procedure, which was moved, by the appellant, before the first Appellate Court, for comparison of the thumb-impressions of Basant Kaur, on the counter-part of the said Will, kept in the records of the Sub-Registrar, with her standard thumb-impressions, was required, to be accepted, as R.S.A. No. 2421 of 1984 8 the report of the Handwriting and Finger Prints Expert, after such comparison, would have enabled the Court concerned, to pronounce the judgement, in a satisfactory manner. The earlier report of the Finger Print Bureau in criminal file, was not proved in this case, as the interrogatories were sent to the concerned Court for examination of the said expert, but, the same were returned, on the ground that the original documents had not been sent alongwith the same. The Courts, are meant, to deliver substantial justice. The material evidence, should not be shut, by the Courts, at the altar of hyper-technicalities. When the substantial justice and hyper-technicalities, are pitted, against each other, then the former shall prevail over the latter. Since the material evidence of the appellants, was shut, in this case, for no fault of theirs, in my considered opinion, the case deserves to be remanded back, to the trial Court, after setting aside the judgements and decrees of the Courts below, with directions, referred to hereinafter. 13. For the reasons recorded above, the appeal, is accepted with no order, as to costs. The judgements and decrees of the Courts below, are set aside. The case, is remanded back, to the trial Court, with a direction, that it shall summon the counter-part of the Will dated 16.05.73, copy whereof, is D1, kept in the register of the office of the Sub-Registrar, and, get compared the questioned thumb-impressions of Basant Kaur, existing thereon, with her standard thumb-impressions, and, after the receipt of the opinion of the Government Handwriting and Finger Prints Expert, examine him, as a witness. Thereafter, an R.S.A. No. 2421 of 1984 9 opportunity, shall be given, to the plaintiff/respondent, to lead evidence, in rebuttal. Such an exercise, shall be completed, by the Court below, within a period of six months, from the date of appearance of the parties, in the Court, and, the case, shall be finally decided afresh, within one month thereafter, without being influenced by the observations, made in this judgement. The expenses of the witnesses, including the Handwriting and Finger Prints Expert, shall be borne, by the appellants. 14. The parties, are directed, to appear, in the trial Court, on 19.08.2010, at 10.00 AM sharp. 15. The Registry, is directed, to send the records, complete in all respects alongwith copies of the judgement, to the Courts concerned by all means of communication, permissible, under law, immediately, so as to reach the trial Court, before the date fixed. 16. The District and Sessions Judge, Amritsar, shall send a report within a month, as to what action, has been taken against the official(s) and other person(s) involved in the loss/misappropriation of the registered Will dated 15.06.73. 23.07.2010 (SHAM SUNDER) Amodh JUDGE