RSA No. 1693 of 2008 1 RSA No. 1694 of 2008 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1693 of 2008 Date of Decision: 21.08.2009 Joginder Pal Sharma, son of Shri Parja Ram Sharma, r/o H. No. B-VI-1881, Vishnu Nagar, Yamuna Nagar. ... Appellant Versus 1. Vinod Kumar Sharma, son of Sh. Parja Ram Sharma, resident of B-13, BEL Colony, Panchkula. 2. Sushil Kumar Sharma son of Sh. Parja Ram Sharma, Lecturer, in Govt. Sr. Sec. School, Jode Ambala, Tehsil Barsar, District Hamirpur (H.P). 3. Promila Sharma d/o Sh. Parja Ram, r/o 146-A, MIG, Housing Board Colony, Kalka (Haryana). 4. Sushila Sharma d/o Sh. Parja Ram Sharma, w/o Vijay Sharma, resident of Labour Commisioner Sanchio Vikario Hospital, New Delhi. 5. Smt. Manthro Devi wd/o Parja Ram Sharma, r/o V. Kanch Upper, P.O. Bani, Tehsil Barsar, District Hamirpur (H.P). ...Respondents R.S.A. No. 1694 of 2008 Date of Decision: 21.08.2009 1. Joginder Pal Sharma, son of Shri Parja Ram Sharma; 2. Veena Sharma wife of Shri Joginder Pal Sharma; both r/o H. No. B-VI-1881, Vishnu Nagar, Yamuna Nagar. ... Appellants Versus Smt. Manthro Devi wd/o Parja Ram Sharma, r/o B-VI-1881, Vishnu Nagar, Jagadhri Workshop, District Yamuna Nagar. ...Respondent RSA No. 1693 of 2008 2 RSA No. 1694 of 2008 CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Sachin Jain, Advocate, for the appellant(s). Mr. Sanjiv Sharma, Advocate, for the respondent(s), in both the appeals. SHAM SUNDER, J. * * * * This judgement shall dispose of RSA No. 1693 of 2008, filed by Joginder Pal, and RSA No. 1694 of 2008, filed by Joginder Pal Sharma and Veena Sharma, against the judgement and decree dated 06.12.05, rendered by the Court of Additional Civil Judge (Senior Division), Jagadhri, vide which, it dismissed the suit of the plaintiff/appellant (Joginder Pal Sharma), and decreed the suit of Manthro Devi, plaintiff/respondent, and the judgement and decree dated 12.05.08, rendered by the Court of Additional District Judge, Yamuna Nagar, vide which, it dismissed both the appeals. 2. Joginder Pal Sharma, claimed that his father Parja Ram, was the owner of the property, in question, which he purchased from the income of agricultural land, which was owned by their ancestors. Parja Ram, constructed a house, on the plot, which he purchased from the common funds of the family. He expired on 15.01.01, leaving behind the plaintiff, (Joginder Pal) and the defendants (now respondents), as his only heirs. Joginder Pal, occupied one room, varandah and kitchen, during the life time of his father, while the remaining portion, was also in the joint possession of the parties. The plaintiff, became owner, to the extent of 1/6 share, in the house, but the defendants, with malafide intention, were threatening to oust RSA No. 1693 of 2008 3 RSA No. 1694 of 2008 him, from the portion, in which he was living, and raise construction therein. Defendants No. 1 and 2 alongwith their mother i.e. defendant No. 5, exercised political influence through the Police, and got signatures of the plaintiff, on a written compromise forcibly. The said compromise had not been executed willingly by the plaintiff for vacating the portion, in which, he had been living since 18.06.01. The defendants, were many a time asked, not to do so, but to no avail. On the final refusal of the defendants, to desist from their illegal designs, left with no other alternative, a suit for possession, by way of partition, 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 locus-standi, as Parja Ram, had executed a valid Will on 19.09.2000, in favour of defendant No. 5. It was further pleaded that the plaintiff, was estopped, from filing the suit. It was stated that the plaintiff, was not on visiting terms, with any other member of the defendant's family. The deceased was very much upset with the behaviour of his son i.e. the plaintiff, and had, therefore, excluded him, from the property, in dispute. The compromise was entered into by the plaintiff, out of his free will, but he failed to vacate the house, as per the settlement. It was admitted that the plot was purchased by Parja Ram, and construction was raised by him. It was denied that the amount was spent, out of any income of the joint family. It was stated that he was working in the Railways, and had taken loan and constructed the house from his own income. It was further stated that earlier the plaintiff, was working in Nangal (Punjab), and shifted to Yamuna Nagar a couple of years, before filing the suit. He was residing separately. Later on, he forcibly entered into RSA No. 1693 of 2008 4 RSA No. 1694 of 2008 a portion of the house, in question, on 10.05.01, and refused to vacate the same. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck, in the suit filed by Joginder Pal, plaintiff:- (i) Whether the plaintiff is entitled for separate possession by way of partition to the extent of 1/6 share in the house as fully detailed and described in the heading of the plaint? OPP (ii) Whether the plaintiff is entitled for injunction as prayed for? OPP (iii) Whether the plaintiff has no locus- standi and the suit is not maintainable? OPD (iv) Whether Parja Ram has executed a Will dated 19.09.2000, in favour of defendant No. 5? OPD (v) Whether the plaintiff is estopped from filing the present suit by his own act and conduct as alleged in para No. 2 of the preliminary objections? OPD (vi) Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD (vii) Relief. 5. In the second suit filed by Manthro Devi, plaintiff, now respondent, the averments were identical to the one made in the written statement. It was stated that Parja Ram, executed a Will, in favour of Manthro Devi. It was stated that Joginder Pal and his wife Veena Sharma, had forcibly entered into a portion of the house. Manthro Devi i.e. the plaintiff sought a decree for possession qua the said portion. 6. On the pleadings of the parties, the following issues were struck, in the suit filed by Manthro Devi:- RSA No. 1693 of 2008 5 RSA No. 1694 of 2008 (i) Whether there is Will dated 19.09.2000, alleged to have been executed by Parja Ram deceased? OPP (ii) Whether the suit is liable to be dismissed in view of the objection raised in the written statement? OPD (iii) Whether the suit is not maintainable? OPD (iv) Whether the plaintiff has no locus- standi? OPD (v) Relief. 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of Joginder Pal, plaintiff/appellant, and decreed the suit filed by Manthro Devi, plaintiff/respondent. 8. Feeling aggrieved, two appeals were preferred, by the appellant(s), which were dismissed by the Court of Additional District Judge, Yamuna Nagar, vide judgement and decree dated 12.05.08. 9. Still feeling dissatisfied, the instant Regular Second Appeals, have been filed by the appellant(s). 10. I have heard the Counsel for the parties and have gone through the evidence and record of the case, carefully. 11. The following substantial questions of law arise, in this appeal, for the consideration of this Court:- (i) Whether the Courts below, misread and misappreciated the evidence and recorded perverse findings, that Parja Ram, the original owner of the property, executed a legal and valid Will dated 19.09.2000, in favour of Manthro Devi, respondent? (ii) Whether the Courts below recorded a perverse finding that the RSA No. 1693 of 2008 6 RSA No. 1694 of 2008 compromise D3 was not the result of coercion? 12. The Counsel for the appellants, submitted that no legal and valid Will, was executed, by Parja Ram, in favour of Manthro Devi his widow. He further submitted that the said Will, did not see the light of day immediately after the death of Parja Ram, but was, for the fist time, set up, in the written statement. He further submitted that the testator, was a well educated person, and it could not be expected of him not to get registered the Will, if he wanted to execute the same, in favour of Manthro Devi. He further submitted that, even the attesting witnesses, gave different versions, with regard to the alleged execution of the Will, and no reliance, thereon, could be placed. He further submitted that even D3, the compromise, was the result of coercion, exercised upon the appellant. He further submitted that even according to the Will, only life estate was given to Manthro Devi, by Parja Ram. He further submitted that the Will, was surrounded by suspicious circumstances, but the Courts below, failed to take into consideration the same, resulting into holding the validity thereof. He further submitted that the judgements and decrees of the Courts below, being illegal, were liable to be set aside. 13. On the other hand, the Counsel for the respondents, submitted that the Courts below, recorded concurrent findings of fact, on due appreciation of evidence. He further submitted that a legal and valid Will exhibit D1, was executed by Parja Ram, in favour of Manthro Devi. He further submitted that the Will, was not surrounded by any suspicious circumstance, but, on the other hand, is a valid document. He further submitted that Joginder Pal, appellant, was rightly excluded from his property, by Praja Ram, by giving cogent reasons, in the Will itself. He RSA No. 1693 of 2008 7 RSA No. 1694 of 2008 further submitted that, even the Handwriting and Finger Prints Expert, gave the report PX, that the signatures of the deceased, on the Will, tallied with his specimen signatures. He further submitted that the Courts below, were right, in dismissing the Civil Suit No. 316 of 2001, filed by Joginder Pal Sharma, appellant, and decreeing the Civil Suit No. 49 of 2004, filed by Manthro Devi. He further submitted that the judgements and decrees of the Courts below, being legal and valid, were liable to be upheld. 14. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeals deserve to be dismissed, for the reasons to be recorded, hereinafter. The principal question, that fell for decision, before the Courts below was, as to whether, a legal and valid Will dated 19.09.2000, exhibit D1, was executed by Parja Ram, in favour of Manthro Devi, his wife. The Will speaks from the death of a person. It is for the propounder to prove the execution, legality and validity of the Will, as also to dispel the suspicious circumstances, if any, surrounding the same. Sukhversha Kumar, DW1, and Goverdhan Dass Khanna, DW2, are the attesting witnesses of the Will dated 19.09.2000, exhibit D1, executed by Parja Ram, in favour of his wife Smt. Manthro Devi. Both these witnesses deposed that the contents of the Will, were read over and explained to the testator, as also to them, and after admitting the same to be correct, he signed the same, in their presence, and they signed the same, in his presence. It was further stated by them that the testator, was in sound disposing mind, at the time of execution of the Will D1. There is nothing, on the record, that these witnesses are interested in the respondents and inimical towards the appellant. Once the execution of the Will, was proved, the propounder, was required to dispel the suspicious RSA No. 1693 of 2008 8 RSA No. 1694 of 2008 circumstances, if any, surrounding the same. 15. One of the suspicious circumstances highlighted, at the time of arguments, was that, the Will, was unregistered, and if the testator wanted to actually bequeath his property, in favour of his wife Manthro Devi, then he, being well educated person, would have certainly got the same registered. It may be stated here that, the Will is not a compulsorily registrable document. Under these circumstances, in case, the Will, was not got registered, by the testator, that could not be said to be a suspicious circumstance. Since the execution, validity, and legality of the Will, exhibit D1, was proved, by the attesting witnesses, referred to above, mere non- registration of the same, did not at all cast any doubt, upon the same. The Courts below, were also right, in coming to the conclusion, that mere non- registration of the Will, did not make the same to be an invalid document. 16. The next suspicious circumstance, highlighted by the Counsel for the appellant, was to the effect, that there was no reason, on the part of the testator, to exclude his son namely Joginder Pal Sharma, from his property, as father, is expected to have love and affection for all his children, equally. It may be stated here, that the Will, is always executed, with a view to deflect from the normal course of succession. However, the testator, gave valid reasons for excluding Joginder Pal Sharma, appellant, from his property. It was stated by him, that he was excluding his son Joginder Pal Sharma, as he had acquired a plot and also constructed a house, in the name of his wife. It was further stated that Joginder Pal Sharma, appellant, was employed in the Railways, on the basis of his (testator's) loyalty, and he was provided every kind of help and assistance by him (testator) and other family members, in time of need, and RSA No. 1693 of 2008 9 RSA No. 1694 of 2008 requirement. It was further stated that he had been living separately with his wife, and two sons, who were studying in colleges/schools. Since valid reasons, were given, for excluding Joginder Pal, from his property, by Parja Ram, while executing the Will, it could not be said, that it was a suspicious circumstance, surrounding the same. The Courts below, were also right, in coming to the said conclusion. 17. No doubt, it was, pointed out, by the Counsel for the appellant, that there was some gap between the body writing of the Will D1, and the signatures of Parja Ram, testator, which showed that his signatures, were already, in existence, on a blank paper, and the Will, was fabricated, later on. However, there is no substance, in the argument of the Counsel for the appellant, in this regard. No doubt, there is some gap between the body of the Will and the signatures of the testator, but the same, is not too wide, to come to the conclusion, that the signatures of Parja Ram, already existed, on a blank paper, which was converted into a Will D1. Signatures of Parja Ram, on Will D1, were also proved by the Handwriting and Finger Prints Expert, vide his report PX. The report of the Handwriting and Finger Prints Expert, that signatures, on the Will, tallied with the specimen signatures of Parja Ram, therefore, corroborated the ocular evidence, that the Will,was executed by Parja Ram. In these circumstances, the submission of the Counsel for the appellant, does not carry any weight. 18. Now, coming to D3, the compromise, which was arrived at, between the parties, wherein, Joginder Pal Sharma, appellant, appeared before the Panchayat, and stated that he would vacate the demised premises by 18.06.01, and hand over the possession thereof, in favour of Manthro Devi, it may be stated here, that it bears his signatures, as also the RSA No. 1693 of 2008 10 RSA No. 1694 of 2008 signatures of Manthro Devi, Bihari Lal, and so many other persons. The Counsel for the appellant, submitted that it was the result of coercion. Joginder Pal Sharma, being employed, in the Railways, and well educated person, it could not be said, that any pressure, was exercised, upon him, by anybody, while entering into this compromise. There is nothing, on the record, that he made any complaint to any authority, that his signatures, on this compromise, were obtained, under coercion, and, as such, the same was illegal. The Courts below, were right, in holding, that the compromise D3, was a legal and valid document. 19. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based on the correct reading and due appreciation of evidence, and law, on the point, do not suffer, from any illegality or perversity, and, therefore, warrant no interference. The submission of the Counsel for the appellants, thus, being without merit, must fail,and the same stands rejected. The judgements and decrees of the Courts below, are liable to be upheld. The substantial questions of law, depicted above, are answered, against the appellants. 20. For the reasons recorded above, the instant Regular Second Appeals, being devoid of merit, must fail, and the same are dismissed. 21.08.2009 (SHAM SUNDER) Amodh JUDGE