Case: DHANPAT Vs. SHEO RAM (DECEASED) THROUGH LRS. &amp; ORS.

3. The admitted facts are that one Misri was the grandfather of the Plaintiff-Sheo Ram and defendant No.5-Sohan Lal and defendant Nos.7-9 were his granddaughters. Chandu Ram was the father of the plaintiff and defendant Nos.5, 7-9 and the husband of Chand Kaur had inherited the suit land from his father, Misri4. The plaintiff filed a suit for declaration that he along with his mother, Chand Kaur and his sisters, defendants Nos. 7-9, were the owners and in possession of equal shares of the suit land measuring 489 kanals 4 marlas. He asserted that he belonged to the Jat community and was governed by Punjab Customary Law. Further, that his brother, defendant No. 5, got a Will dated 30 th April, 1980 executed in favour of his sons, from Chandu Ram. Such a Will contravened Jat Customary Law and was the result of fraud and misrepresentation. Defendant No.5 and his sons, the beneficiaries under the Will filed a common written statement and asserted that the custom had been abrogated after passing of the Hindu Succession Act, 1956 (for short, Act) and that Chandu Ram had separated all his sons during his life time and given sufficient amount to his daughters, defendant Nos.7-9, in the shape of dowry and other ceremonial and customary festivities. In this regard, sufficient land had also been given to the plaintiff, therefore, there was no Joint Hindu Family. The Will had been executed by Chandu Ram out of his natural love and affection and was without any inducement or fraud or misrepresentation5. The learned trial court framed as many as 12 issues but for the purpose of deciding the present appeal, Issue Nos. 1, 3 and 7 are relevant which read as under:1. Whether the plaintiff and the proforma defendants are the owners and in possession of the property in dispute?3. Whether the Will dated 30.4.1980 was validly executed by Chandu Ram in favour of defendants No. 1 to 4?7. Whether deceased Chandu had separated all his sons during his life time and had given sufficient amount to his daughters in the shape of dowry etc. and land to his sons as alleged in preliminary objection no. 5 of the written statement? If so to what effect?6. In respect of Issue No. 7 relating to the partition of the property by Chandu Ram, the defendants relied upon a judgment and decree in a suit filed by the Plaintiff-Sheo Ram and defendant No.5, Sohan Lal against their father Chandu Ram. Chandu Ram admitted the fact of partition and that a judgment (Ex.D-21) and decree (Ex.D-22) to this effect was passed. Thereafter, a mutation was also sanctioned. Chandu Ram had filed a suit for permanent injunction to the effect that the property in dispute fell to his share while the defendant (present plaintiff) was given 50 acres of land situated in Village Gawar, 15½ acres of land in Village Bairan, 10 acres of land in Village Hariawas and 6 acres of land in Village Baliali, totaling 81½ acres. It was also pleaded that the defendant therein sold 50 acres of land of Village Gawar and 15½ acres of land of Village Bairan after this partition. The defendant therein asserted that the properties mentioned above were purchased by him from his exclusive funds and, therefore, he has right to sell the same. The certified copy of judgment and decree are Ex. D-17 and D-18. Therefore, the learned trial court held that Chandu Ram had separated his sons during his life time and had settled his daughters as well. Such findings were affirmed by the learned First Appellate Court7. In respect of Issue No. 3, the learned trial court held that the Will is duly proved on the basis of statement of DW-3 Maha Singh, an attesting witness, DW-4 Advocate D.S. Panwar, the scribe, DW-5 Sohan, the defendant and Krishan Kant, Registration Clerk as DW 2. The Court noticed that DW-4 D.S. Panwar was Chandu Rams advocate in the cases before the Civil Court who had scribed the Will at his instance and Maha Singh had put his signatures on the original Will in his presence. DW-4 D.S. Panwar deposed that the original Will was stated to have been lost and that he was not sure as to whether Ex. D-3 was the correct photocopy of the original Will. Chand Kaur, wife of Chandu Ram was examined as PW-1 who had deposed that Chandu Ram had ousted her from his house. Therefore, the Court found that it was natural for Chandu Ram to execute the Will in favour of Defendant No.5, Sohan Lals sons. The Court did not find any merit in the argument that a deviation from natural succession will make the Will doubtful. It was also held that the scribe cannot be treated as an attesting witness but that since two attesting witnesses have signed the Will, the execution of the Will is proved by examining one of the attesting witnesses. With the aforesaid findings, the learned trial court dismissed the suit filed by the plaintiff8. The learned First Appellate Court affirmed the findings recorded by the trial court and dismissed the suit filed by the plaintiff vide judgment and decree dated 11 th May, 1987. It was held that the Will had been executed by Chandu Ram in favour of the defendant Nos. 1 to 4, i.e. the sons of Defendant No.5, Sohan Lal and was not surrounded by suspicious circumstances9. In second appeal, the learned High Court allowed the appeal filed by the plaintiff holding that the Will dated 30 th April, 1980 was surrounded by suspicious circumstances. The substantial question of law framed by the High Court was only to this effect. It was argued by the defendants that the finding that the Will stands executed and was not surrounded by suspicious circumstances and has been illegally interfered by the High Court10. The High Court had held that only Maha Singh was examined as attesting witness as DW-3 whereas the second attesting witness Azad Singh was not produced, therefore, the Will was not proved. It also held that the Will had been completely misread, misconstrued and misinterpreted. The High Court found that in the Will, there was no mention of Chandu Rams wife and the other son i.e. the Plaintiff, and therefore, such fact was a suspicious circumstance to doubt the genuineness of the Will. The High Court referred to the judgment of the trial court dated 7 th December, 1981 filed by Chandu Ram to prove that the house and agricultural land were ancestral property though no substantial question of law on the said aspect relating to the nature of land was framed. In fact, the judgment dated 7 th December 1981 (Ex- D-17) in the suit filed by Chandu Ram, has been produced by the respondent with the present appeal. A perusal of the judgment shows that Chandu Ram had asserted partition of the property about 8-10 years back. The Plaintiff-Sheo Ram had asserted that he is in joint possession of the property. In the said suit, a decree for permanent injunction was passed restraining the defendant from interfering with the disputed property after returning a finding on Issue No. 5 that a family partition had taken place and that the property cannot be said to be joint property of the parties. The High Court has not referred to the findings recorded in the suit filed by the Plaintiff-Sheo Ram.

Reasoning:
11. It may be noticed that in view of Constitution Bench judgment of this Court in Pankajakshi (D) through LRs & Ors. v. Chandrika & Ors. (2016) 6 SCC 157   , substantial question of law may not be required to be framed in Punjab and Haryana but still, the finding of fact recorded cannot be interfered with even in terms of Section 41 of the Punjab Courts Act, 1918. The said question was examined by this Court in Randhir Kaur v. Prithvi Pal Singh and Others Civil Appeal No. 5822 of 2019 decided on 24 th July, 2019, wherein, the scope for interference in the second appeal under Section 41 of the Punjab Courts Act applicable in the States of Punjab and Haryana was delineated and held as under:16. A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact17. In view of the above, we find that the High Court could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view. The learned first appellate court has considered the absence of clause in the first power of attorney to purchase land on behalf of the Plaintiff; the fact that the plaintiff has not appeared as witness17. Even though, the aforesaid judgment is in respect of the loss of a sale deed, the said principle would be applicable in respect of a Will as well, subject to the proof of the Will in terms of Section 68 of the Evidence Act. In the present case as well, the Will was in possession of the beneficiary and was stated to be lost. The Will is dated 30 th April, 1980 whereas the testator died on 15 th January, 1982. There is no cross-examination of any of the witnesses of the defendants in respect of loss of original Will. Section 65 of the Evidence Act permits secondary evidence of existence, condition, or contents of a document including the cases where the original has been destroyed or lost. The plaintiff had admitted the execution of the Will though it was alleged to be the result of fraud and misrepresentation. The execution of the Will was not disputed by the plaintiff but only proof of the Will was the subject matter in the suit. Therefore, once the evidence of the defendants is that the original Will was lost and the certified copy is produced, the defendants have made out sufficient ground for leading of secondary evidence20. There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed23. In view of the aforesaid judgments, at least one of the attesting witnesses is required to be examined to prove his attestation and the attestation by another witness and the testator. In the present case, DW-3 Maha Singh deposed that Chandu Ram had executed his Will in favour of his four grandsons and he and Azad Singh signed as witnesses. He deposed that the testator also signed it in T ehsil office. He and Azad Singh were also witnesses before the Sub-Registrar. In the cross-examination, he stated that he had come to T ehsil office in connection with other documents for registration. He deposed that Ex.D-4-the Will, was typed in his presence. He denied the question that no Will was executed in his presence. There was no cross-examination about his not being present before the Sub-Registrar. Once the Will has been proved then the contents of such document are part of evidence. Thus, the requirement of Section 63 of the Act and Section 68 of the Evidence Act stands satisfied. The witness is not supposed to repeat in a parrot like manner the language of Section 68 of the Evidence Act. It is a question of fact in each case as to whether the witness was present at the time of execution of the Will and whether the testator and the attesting witnesses have signed in his presence. The statement of the attesting witness proves the due execution of the Will apart from the evidence of the scribe and the official from the Sub-Registrars office25. In the aforesaid case, it had been held that the person who put his name under the word scribe was not an attesting witness, further that the legatees who had put their signatures on the Will were not attesting witnesses. In the present case, Maha Singh and Azad Singh have signed the Will as attesting witnesses not only at the time of execution but also at the time of registration before the Sub-Registrar. Therefore, the said judgment is not helpful to the argument raisedWe do not find any merit in the said argument. In the aforesaid case, it was the scribe who was said to be the attesting witness. This Court held as under:27. …The animus to attest, thus, is not available, so far as the scribe is concerned: he is not a witness to the will but a mere writer of the will. The statutory requirement as noticed above cannot thus be transposed in favour of the writer, rather goes against the propounder since both the witnesses are named therein with detailed address and no attempt has been made to bring them or to produce them before the court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to be the proof of due attestation unless the situation is so expressed in the document itself — this is again, however, not the situation existing presently in the matter under consideration. Some grievance was made before this Court that sufficient opportunity was not being made available, we are however, unable to record our concurrence therewith. No attempt whatsoever has been made to bring the attesting witnesses who are obviously available27. The said judgment has no applicability inasmuch as Maha Singh is the attesting witness and has been examined as such by the defendant29. We do not find any merit in the said argument as well. The statement of Maha Singh produced on record shows that he along with Azad Singh, the other attesting witness and the testator had signed the Will. In the cross-examination, the statement that he has signed the Will had not been disputed nor that the testator or the other attesting witness was not present at that time. Therefore, the ratio of the aforesaid judgment is not applicable to the facts of the present case. In fact, it is finding of fact, recorded by the First Appellate Court30. In respect of an argument that some of the natural heirs were not even mentioned in the Will, therefore, the Will is surrounded by suspicious circumstances is again not tenable.